340 Immigration Offenses (§2L) | Welcome to Federal Sentencing Cases

200 – Offense Conduct, Generally (Chapter 2)

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§340 Immigration Offenses

5th Circuit upholds within-guidelines sentence despite co-arrestee’s lower sentence from a different judge. (340)(742) Defendant was found guilty of illegal reentry after deportation and was sentenced to 30 months—at the bottom of the guidelines range. He argued that his sentence was unreasonable because it was greater than his cousin who was arrested with him and sentenced by a different judge. The Fifth Circuit noted that the district court had considered this argument and rejected it, and that is all that is required. U.S. v. Barcenas-Rumualdo, __ F.4th __ (5th Cir. Nov. 18, 2022) No. 21-50795.

5th Circuit holds that Texas aggravated assault is not an “aggravated felony.” (340) Defendant pleaded guilty to illegal entry after deportation. The district court found that his prior conviction for aggravated assault under Texas Penal Code § 22.01(a)(1) was an “aggravated felony,” and therefore increased his sentence. In Borden v. U.S., 141 S.Ct. 817 (2021), the Supreme Court held that an offense that can be committed recklessly does not qualify as a “violent felony” under the Armed Career Criminal Act. An “aggravated felony” is defined by 8 U.S.C. § 1143, as a “crime of violence.” Relying on Borden, the Fifth Circuit held that the Texas statute was not an “aggravated felony” because it can be committed recklessly. U.S. v. Gomez-Gomez, __ F.4th __ (5th Cir. Jan. 18, 2022) No. 17-20526.

5th Circuit affirms upward variance for alien despite reliance on “bare arrest record.” (340)(741) Defendant pleaded guilty to illegal reentry following deportation. His guidelines range was 10 to 16 months, but the district court varied upward and imposed a 65-month sentence. Defendant argued that his sentence was unreasonable because the district court had relied on defendant’s “bare arrest record.” Reviewing for plain error, the Fifth Circuit held that the error did not affect defendant’s substantial rights because the district court would have imposed the same sentence regardless. U.S. v. Zarco-Beiza, __ F.4th __ (5th Cir. Jan. 24, 2022) No. 21-40060.

5th Circuit panel declines to admonish counsel for arguing that priors should be proved to jury. (340) Defendant’s sentence for illegal reentry under 8 U.S.C. § 1326(b)(1) was increased because he had a prior illegal reentry conviction. In his appeal, defense counsel argued that the prior conviction enhancement was improper because it had not been admitted or proved to a jury. The Fifth Circuit granted the government’s motion to dismiss the appeal because the Supreme Court has repeatedly held that prior convictions need not be alleged in the indictment or proved to the jury. However, in a concurring opinion, all members of the panel stated that they did not agree with “admonitions” other members of the court had issued to criminal defense counsel not to raise this issue, even though it is foreclosed by Supreme Court precedent. U.S. v. Garcia De La Cruz, __ F.4th __ (5th Cir. Nov. 10, 2021) No. 21-50304.

5th Circuit reiterates that prior conviction used to enhance sentence does not require jury finding. (340) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. His sentence was increased because he had a prior conviction. Defendant argued that this was unconstitutional because the fact of his prior conviction was not found by a jury. The Fifth Circuit granted the government’s motion to dismiss the appeal because the Supreme Court has repeatedly ruled that enhancement of a sentence by a prior conviction does not require a jury finding. U.S. v. Contreras-Rojas, __ F.4th __ (5th Cir. Oct. 29, 2021) No. 21-50500.

5th Circuit upholds enhancement for death during immigration offense. (340) During a high-speed chase to avoid immigration officials, a man died. At the trial of one of the aliens being smuggled, the jury found that defendant was not responsible for the death. Nevertheless, at sentencing, the district court added ten levels under § 2L1.1(b)(7)(D), because a person died in the course of the immigration offense. The Fifth Circuit affirmed, ruling that defendant’s conduct was a but-for cause of the man’s death. U.S. v. Gaspar-Felipe, __ F.3d __ (5th Cir. July 13, 2021) No. 19-50997.

5th Circuit upholds within-guidelines sentence, finding small explanation sufficient. (340)(742) Defendant was convicted of immigration offenses, and the district court sentenced him to 78 months, the low end of the guidelines range. The Fifth Circuit affirmed, finding that the district court satisfied its burden to give a small explanation for the within-guidelines sentence and noting that the codefendants were not similarly situated to defendant. U.S. v. Gaspar-Felipe, __ F.3d __ (5th Cir. July 13, 2021) No. 19-50997.

5th Circuit says Texas intoxication manslaughter is not a “crime of violence.” (340) Defendant pleaded guilty to illegal reentry after deportation. At sentencing, the district court found that defendant’s prior conviction for manslaughter while intoxicated, in violation of Texas Penal Code § 49.08(a), was a “crime of violence” and therefore an “aggravated felony.” The Fifth Circuit reversed, holding that the Texas statute is not a “crime of violence,” and therefore not an “aggravated felony.” Nevertheless, the sentence was in the guidelines range and the panel found “no indication” that the sentence was affected by the district court’s error. U.S. v. Trujillo, __ F.3d __ (5th Cir. July 9, 2021) No. 20-10679.

D.C. Circuit reverses where court was not aware it could vary downward for deportable alien. (340)(740) Defendant was a deportable alien who pleaded guilty to making extortionate threats. The presentence report said he might be eligible for a downward variance because as a deportable alien, he could not be released early to a halfway house. The district court rejected that suggestion because defendant had committed his offense while abroad. The D.C. Circuit reversed, holding that a variance on this ground is permissible. On remand, the district court must provide a reasoned basis for accepting or rejecting a variance. U.S. v. Thomas, __ F.3d __ (D.C. Cir. June 11, 2021) No. 19-3015.

9th Circuit says Nevada distribution of cocaine is a “drug trafficking offense.” (340) At defendant’s sentencing for illegal reentry after deportation, the district court increased the offense level under § 2L1.2(b)(1)(A) because defendant had a prior conviction for a “drug trafficking offense,” i.e., a violation of Nevada Rev. Stat. § 353.337. Defendant argued that his prior conviction was not a “drug trafficking offense” because the Nevada statute was broader than the corresponding federal statute. Applying the modified categorical approach, the Ninth Circuit ruled that the Nevada statute was divisible and that defendant had distributed cocaine. For that reason, the court held that defendant had committed a “drug trafficking offense.” U.S. v. Figueroa-Beltran, __ F.3d __ (9th Cir. Apr. 27, 2021) No. 16-10388.

9th Circuit affirms refusal to apply proposed immigration amendment. (340) In 2015, defendant pleaded guilty to illegal reentry after deportation. The district court declined to apply a proposed amendment to the illegal reentry guideline, § 2L1.2, that would have reduced defendant’s guideline range. The Ninth Circuit held that the district court had discretion to apply the proposed amendment, but it also could properly refuse to apply it. U.S. v. Figueroa-Beltran, __ F.3d __ (9th Cir. Apr. 27, 2021) No. 16-10388.

11th Circuit says counting immigration priors twice is not improper double counting. (125)(340) A defendant convicted of illegal reentry is subject to an increase in offense level under § 2L1.2(b)(2) and (3) based on prior convictions. And the same prior convictions also count in criminal history. Nevertheless, the Eleventh Circuit found that this does not constitute improper double counting or violate the Equal Protection Clause. U.S. v. Osorto, __ F.3d __ (11th Cir. Apr. 20, 2021) No. 19-11408.

6th Circuit upholds guidelines sentence for illegal reentry. (340)(742) Defendant was sentenced to 37 months, the low end of the guidelines range for reentry after deportation. On appeal, he argued that the district court gave too much weight to his prior conviction before deportation and his prior conviction after his illegal reentry. The Eleventh Circuit found that the district court properly considered the factors set forth in 18 U.S.C. § 3553(a). The sentence was substantively reasonable. U.S. v. Osorto, __ F.3d __ (11th Cir. Apr. 20, 2021) No. 19-11408.

10th Circuit says alien’s arrest by local officers did not mean he was “found” for federal purposes. (340) Defendant pleaded guilty to illegal reentry after deportation. The plea agreement said he had been “found” in the U.S. in January 2018. The guidelines for that offense, § 2L1.2, had been increased in November 2016, and for the first time on appeal, defendant argued that he had been “found” in the U.S in July 2016, when he was arrested by local police. Applying plain error review, the Tenth Circuit held that defendant failed to show that federal, as opposed to local, law enforcement officials learned of his presence in the U.S. until after November, 2016. U.S. v. Romero-Lopez, __ F.3d __ (10th Cir. Nov. 25, 2020) No. 19-1268.

5th Circuit finds increase harmless where court said it would impose the same sentence regardless. (340) (850) Defendant pleaded guilty to harboring aliens and was sentenced to 120 months, the statutory maximum. The district court was aware of the guidelines range and remarked that it would have imposed the same sentence regardless of the government’s recommendation. Defendant challenged two enhancements to his offense level, but the Fifth Circuit found that any error would be harmless because the district court said the sentence was reached irrespective of the guidelines range and position of the government. U.S. v. Medel-Guadalupe, __ F.3d __ (5th Cir. Oct. 27, 2020) No. 19-40901.

7th Circuit upholds above-guidelines sentence for illegal reentry. (340)(741) Defendant pleaded guilty to illegal reentry after deportation. He had been deported three times and convicted of illegal reentry once before. His guidelines range was 30 to 37 months, but the district court sentenced him to 72 months because of his extensive criminal history and because his sentence of 57 months for the prior illegal reentry had not deterred him from reentering the U.S. The Seventh Circuit held that the district court had adequately explained defendant’s 72-month sentence and that the sentence was not substantively unreasonable. U.S. v. Vasquez-Abarca, __ F.3d __ (7th Cir. Jan. 9, 2020) No. 18-3716.

2d Circuit says Connecticut first-degree robbery is a “crime of violence.” (340) Under the immigration statutes, a “crime of violence” is an “aggravated felony” that requires deportation. “Crime of violence” is defined in 18 U.S.C § 16(a) as an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another. The Second Circuit held that first-degree robbery under Connecticut General Statutes § 53a-134(a)(4) is a “crime of violence.” Wood v. Barr, __ F.3d __ (2d Cir. Nov. 1, 2019) No. 17-514.

11th Circuit says Washington delivery of cocaine is an “aggravated felony.” (340) A “drug trafficking crime” qualifies as an “aggravated felony” under the immigration statutes and bars relief from deportation. The Eleventh Circuit held that delivering cocaine in violation of Washington Revised Code § 69.50.401(a)(1)(i) is categorically a “drug trafficking crime” and an “aggravated felony” under 8 U.S.C. § 1102(a)(43). The court rejected the argument that accomplice liability is broader under Washington law than the federal equivalent. Bourtzakis v. U.S. Attorney General, __ F.3d __ (11th Cir. Oct. 9, 2019) No. 18-12137.

9th Circuit reverses for lack of “clear and convincing evidence” that alien entered U.S within 15 years of prior convictions. (340)(504)(755) Defendant was arrested in 2017 and pleaded guilty to illegal reentry after deportation. His offense level and criminal history were increased based on prior drug convictions in 1998 and 2000. The criminal history guideline, §4A1.2(e) excludes prior sentences imposed more than 15 years before the present offense. Nevertheless, the district court found—based partly on defendant’s 2004 arrest for driving under the influence—that defendant’s present reentry offense began no later than 2004, and that he had been continuously in the U.S. thereafter. The Ninth Circuit reversed, ruling that the district court’s finding had a “disproportionate impact” on the sentence, requiring proof by “clear and convincing evidence.” The panel found that the government could not prove by clear and convincing evidence that defendant had been continuously present in the U.S. since his arrest for driving under the influence. U.S. v. Valle, __ F.3d __ (9th Cir. Oct. 9, 2019) No. 18-50199.

5th Circuit allows old immigration priors to enhance offense level, even if too old for criminal history. (340) (504) Defendant pleaded guilty to transporting undocumented aliens. At sentencing, defendant’s offense level was enhanced under § 2L1.1(b)(3)(B) for two prior immigration convictions. One of the prior convictions was too old to count in criminal history under § 4A1.2(e). Nevertheless, the Fifth Circuit held that a conviction that is ineligible for criminal history points can be used to enhance the offense level under § 2L1.1(b)(3)(B). U.S. v. Cortez-Gonzalez, __ F.3d __ (5th Cir. July 2, 2019) No. 17-41204.

5th Circuit says that despite Dimaya, Texas robbery remains a “crime of violence.” (340)(520) Defendant was convicted of illegal reentry after deportation. His sentence was enhanced for a prior “aggravated felony,” i.e., a robbery conviction under Texas Penal Code § 29.02(a)(1). “Aggravated felony” is defined in part as a “crime of violence” under 18 U.S.C. § 16. In Sessions v. Dimaya, 138 S.Ct 1204 (2018), the Supreme Court struck down § 16(b)’s “residual clause” definition of “crime of violence” as unconstitutionally vague. This overruled an earlier Fifth Circuit case that had relied on the “residual clause” to hold that Texas Penal Code § 29.02(a)(1) was a crime of violence. Nevertheless, in the present case, the Fifth Circuit held that Texas robbery qualified as a “crime of violence” under the “elements” clause of § 16(a), because the offense has “as an element the use, attempted use, or threatened use of force.” U.S. v. Tzacir-Garcia, __ F.3d __ (5th Cir. July 1, 2019) No. 14-41437.

5th Circuit finds reckless driving can support increase for reckless endangerment. (340) While transporting undocumented aliens, defendant drove 20 miles over the speed limit, wove through traffic, and ran a red light. When Border Patrol agents drew closer to his car, he pulled over to the side of the road, then sped off and traveled at speeds up to 100 miles per hour through traffic. Defendant later pleaded guilty to transporting undocumented aliens. At sentencing, the district court enhanced his sentence under § 2L1.1(b)(6) because defendant “recklessly creat[ed] a substantial risk of death or serious bodily injury” to another. The Fifth Circuit found that reckless driving can support the enhancement and that the district court had not erred in finding that defendant recklessly endangered the aliens he was carrying. U.S. v. Garcia-Solis, __ F.3d __ (5th Cir. June 12, 2019) No. 18-40307.

2d Circuit says New York second-degree assault is a “crime of violence.” (340) Under the “elements clause” of 18 U.S.C. § 16(a), a defendant has committed a “crime of violence” if the offense has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a conviction for second-degree assault under New York Penal Law § 120.05(1). The Second Circuit held that the New York offense is categorically a “crime of violence” under § 16(a). Thompson v. Barr, __ F.3d __ (2d Cir. May 13, 2019) No. 17-3494.

2d Circuit says New York conspiracy to commit second-degree murder is a “crime of violence.” (340) Defendant had a prior conviction under New York Penal Law § 105.15 for conspiracy in the second degree to commit second-degree murder. The Second Circuit found that this offense was categorically a “crime of violence” because it has as an element the use, attempted use, or threatened use of physical force against the person of another. Santana-Felix v. Barr, __ F.3d __ (2d Cir. May 9, 2019) No. 17-3850.

5th Circuit says Texas aggravated assault is an “aggravated felony,” despite Dimaya. (340) Defendant pleaded guilty to illegal reentry after deportation. He had a prior conviction under Texas Penal Code § 22.01(a)(2) for intentional aggravated assault. The district court found this conviction was an “aggravated felony,” that increased the maximum sentence. On appeal, the Fifth Circuit affirmed, holding that Texas aggravated assault is an “aggravated felony” under the definition of “crime of violence” in 18 U.S.C. § 16(b). Thereafter, the Supreme Court vacated and remanded after it found § 16(b) unconstitutionally vague in Sessions v. Dimaya, 138 S.Ct. 1204 (2018). On remand, the Fifth Circuit relied on 18 U.S.C. subsection 16(a) to find that Texas aggravated assault is a “crime of violence” (and therefore an “aggravated felony”) because it has as an element the use, attempted use, or threatened use of physical force against the person of another. U.S. v. Torres, __ F.3d __ (5th Cir. May 6, 2019) No. 16-20191.

5th Circuit finds Texas assault on a public servant is an “aggravated felony.” (340) Defendant, convicted of illegal reentry after deportation, had a prior conviction for assault on a public servant under Texas Penal Code § 22.01(a)(1), (b)(1). In a brief opinion, the Fifth Circuit held that under its precedent, Texas assault on a public servant is a “crime of violence” and an “aggravated felony.” U.S. v. Rocha-Flores, __ F.3d __ (5th Cir. Apr. 30, 2019) No. 17-20666.

8th Circuit says U.S. passport card qualifies as a U.S passport. (340) Defendant pleaded guilty to unlawful acquisition and sale of identity documents, in violation of 18 U.S.C. §§ 1028(a)(3) & 1028A(a)(1). At sentencing, the district court enhanced her offense level under § 2L2.1(b)(5)(A) for fraudulently obtaining and using a U.S. passport. Defendant possessed a U.S passport card, which is a document that allows American nationals to travel to a limited number of foreign countries. The Eighth Circuit held that a U.S passport card qualifies as a U.S. passport within the meaning of § 2L2.1(b)(5)(A). U.S. v. Torres, __ F.3d __ (8th Cir. Apr. 15, 2019) No. 18-1245.

5th Circuit in new opinion says Texas assault is a “crime of violence.” (340) Defendant was convicted of illegal reentry after deportation. That offense carries an enhanced offense level for a defendant who has a prior conviction for a “crime of violence.” That term is defined in part to mean an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Defendant had a prior felony conviction under Texas Penal Code § 22.01(a)(1) & (b)(2) for assault – family violence. In an opinion that superseded a previously unpublished decision, the Fifth Circuit held that the Texas offense was a “crime of violence.” U.S. v. Gracia-Cantu, __ F.3d __ (5th Cir. Apr. 2, 2019) No. 15-40227.

5th Circuit upholds death enhancement where smuggled alien had a heart attack. (340) Defendant pleaded guilty to conspiring to transport illegal aliens, in violation of 8 U.S.C. § 1324(a). One of the aliens died of a heart attack while defendant was transporting him. A doctor testified that the heart attack could have happened anywhere, but he believed it was caused by the stress of running from law enforcement. Based on this testimony, the district court added 10 levels under § 2L1.1(b)(7)(D) because a person died during the offense. The Fifth Circuit found that the guidelines contain no causation requirement; the government need only show that the harm would not have occurred but for defendant’s conduct. The panel found the evidence sufficient to uphold the enhancement. U.S. v. Salinas, __ F.3d __ (5th Cir. Mar. 20, 2019) No. 18-40361.

5th Circuit says Texas aggravated assault is violent felony despite “indirect” use of force. (340)(520) Defendant pled guilty to illegally reentering the U.S. after deportation. The district court found that his prior conviction for Texas aggravated assault was a crime of viokence, requiring an increased sentence. On appeal, he argued that Texas aggravated assault does not qualify as a crime of violence under 18 U.S.C. § 16 because it can be accomplished through indirect use of force. The Fifth Circuit rejected the argument, noting that U.S. v. Reyes-Contreras, 910 F.3d 169 (5th Cir. 2018) (en banc), abrogated the distinction between direct and indirect use of force. Instead, it applied U.S. v. Castleman, 572 U.S. 157 (2014), which held that “use of force” encompasses the common-law definition—including offensive touching and indirect applications of force. U.S. v. Gomez Gomez, __ F.3d __ (5th Cir. Feb. 26, 2019) No. 17-20526.

5th Circuit upholds using “single sentence” rule to aggregate prior felony sentences. (340)(504) Defendant pled guilty to illegal reentry after deportation. The district court applied an 8-level increase under § 2L1.2(3)(B) for a prior felony conviction “for which the sentence imposed was two years or more.” Defendant argued that the court improperly aggregated sentences from two prior convictions – 16 months for one count plus 8 months for a second count – rather than using the greatest single sentence. The Fifth Circuit held that the district court correctly relied on § 4A1.2(a)(2)’s “single sentence” rule to aggregate defendant’s prior felony sentences, thereby warranting the 8-level increase under § 2L1.2(b)(3)(B). U.S. v. Garcia-Sanchez, __ F.3d __ (5th Cir. Feb. 21, 2019) No. 18-10001.

5th Circuit upholds recklessness enhancement for person who did not cause the recklessness. (340) Defendant was convicted of transporting undocumented immigrants, in violation of 8 U.S.C. § 1324(a)(1)(A). He picked up the illegal immigrants after they crossed the Rio Grande and drove them in the U.S. until the Border Patrol arrested defendant. At sentencing, the district court enhanced his offense level under § 2L1.1(b)(6) for “intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.” The district court based the enhancement on the testimony of one of the undocumented aliens defendant transported, who said that he and the other immigrants had almost drowned crossing the Rio Grande. The Fifth Circuit upheld the enhancement, finding that defendant participated in a conspiracy that subjected the undocumented immigrants to a risk that they would drown. U.S. v. Najera, __ F.3d __ (5th Cir. Feb. 14, 2019) No. 17-50802.

5th Circuit finds Arkansas burglary is an “aggravated felony” based on Stitt. (340) Defendant, convicted of illegal reentry after deportation, had a prior conviction under Arkansas law for residential burglary. The Fifth Circuit found that the Supreme Court’s decision in U.S. v. Stitt, 139 S.Ct. 399 (2018), settles the question of whether Arkansas residential burglary is an aggravated felony under 18 U.S.C. § 16(a). U.S. v. Perdomo, __ F.3d __ (5th Cir. Jan. 28, 2019) No. 15-40958.

9th Circuit says California robbery remains an “aggravated felony,” though not a “crime of violence.” (340) Defendants were convicted of illegal reentry after deportation in violation of 8 U.S.C. § 1326. Their deportations were based on prior convictions for robbery in violation of California Penal Code § 211. At sentencing, they argued that California robbery no longer qualified as a “crime of violence,” and was therefore not an “aggravated felony” justifying their deportation and enhanced sentence. The Ninth Circuit held that although California robbery is not a “crime of violence,” it is categorically a “theft offense” and therefore still qualifies as an “aggravated felony” under the immigration laws and guideline section 2L1.2. U.S. v. Martinez-Hernandez, __ F.3d __ (9th Cir. Jan. 9, 2019) No. 16-50423.

9th Circuit says state sentencing guidelines determine maximum sentence for prior conviction. (340) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. He had a prior conviction for possession of cocaine in violation of Washington Revised Code § 69.50.4013, a Class C felony with a maximum sentence of five years. Nevertheless, Washington’s statutory sentencing guidelines called for a sentence of 0 to 6 months, and state courts are required to follow the guidelines absent “substantial and compelling reasons justifying an exceptional sentence.” Despite the state guidelines, the district court found that defendant had been convicted of a “felony,” and applied a four level increase under § 2L1.2. On appeal, the Ninth Circuit reversed, holding that because the Washington guidelines provided for a maximum sentence of only six months, defendant’s prior conviction was not a felony. Although prior decisions had held that state sentencing guidelines were irrelevant, the panel held that those decisions were inconsistent with later Supreme Court decisions. U.S. v. Valencia-Mendoza, __ F.3d __ (9th Cir. Jan. 10, 2019) No. 17-30158.

10th Circuit holds that Colorado drug distribution is not an “aggravated felony.” (340) Defendant, charged with illegal reentry after deportation in violation of 8 U.S.C. § 1326, challenged his deportation on the ground that it was based on his prior conviction for selling or distributing methamphetamine in violation of Colorado Revised Statutes § 18-18-405(1)(a), which was not an “aggravated felony.” On appeal, the Tenth Circuit agreed that the Colorado offense did not categorically match the federal definition of “trafficking” because it criminalizes the mere possession of drugs, and the statute was not “divisible” so the modified categorical approach could not be used. Nevertheless, the court found that defendant could not show a reasonable likelihood that he would not have been deported regardless. Therefore his prior deportation was not “fundamentally unfair,” as required by 8 U.S.C. § 1326(d)(3). U.S. v. Almanza-Vigil, __ F.3d __ (10th Cir. Jan. 7, 2019) No. 17-2007.

7th Circuit says Wisconsin battery is “crime of violence.” (340) Defendant had a prior conviction under Wisconsin Statute 940.19(1) for causing bodily harm to another by an act done with intent to cause bodily arm. The Seventh Circuit held that because this statute had “as an element the use, attempted use, or threatened use of physical force against the person or property of another,” it defined a “crime of violence” under immigration law. Beltran-Aguilar v. Whitaker, __ F.3d __ (7th Cir. Jan. 2, 2019) No. 18-1799.

9th Circuit, in revised opinion, finds Arizona domestic misdemeanor is “crime of violence.” (340) An alien who commits a crime of domestic violence is deportable. A crime of domestic violence is defined as a “crime of violence” against a person with a domestic relationship with the defendant. A “crime of violence” under immigration law is an offense that has “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Defendant pleaded guilty to the class one misdemeanor of assaulting his wife, in violation of Arizona Revised Statute § 13-1203(A)(1). Using the modified categorical approach, the Ninth Circuit, in a revised opinion, held that defendant pleaded guilty to a “crime of violence.” Cornejo-Villagrana v. Whitaker, __ F.3d __ (9th Cir. Dec. 27, 2018) No. 13-72185.

2nd Circuit says Arizona drug trafficking is not a “drug trafficking offense.” (340) Defendant pleaded guilty to illegal reentry after deportation, in violation of 8 U.S.C. § 1326. Under § 2L1.2, a defendant convicted of a violation of § 1326 who has a prior conviction for a “drug trafficking offense” may receive a 12-level increase in offense level. The commentary to § 2L1.2 defines “drug trafficking offense” as an offense involving a “controlled substance.” Defendant had a prior conviction under Arizona Revised Statutes § 13-3408(A)(7) for drug trafficking. The Second Circuit held that the phrase “controlled substance” refers exclusively to substances listed in federal law. The court further held that the Arizona statute was indivisible, and that because the Arizona statute lists two substances that are not illegal under federal law, it is not a “drug trafficking offense” as § 2L1.2 uses that term. U.S. v. Guerrero, __ F.3d __ (2d Cir. Dec. 10, 2018) No. 17-1851.

5th Circuit, en banc, looks at indictment to determine whether defendant pled guilty to a crime of violence. (340)(504) The guideline for illegal reentry after deportation, § 2L1.2(b)(1)(A), provides for a 16-level enhancement if defendant has a prior conviction for a “crime of violence.” That term is defined in part to include “manslaughter.” Defendant had a prior conviction under Missouri Revised Statute § 565.023 for voluntary manslaughter. Under the statute, a person could commit voluntary manslaughter either by causing the death of another under the influence of sudden passion or assisting another in the commission of self-murder. Sitting en banc, the Fifth Circuit held that the Missouri statute was divisible. Using the “modified categorical approach,” the court found that although defendant had been indicted for second-degree murder, the indictment showed that he had pleaded guilty to causing the death of another under the influence of sudden passion. The en banc Fifth Circuit overruled prior precedents and held that a court can determine the crime to which a defendant had pleaded guilty by looking at the indictment that charges him with a greater offense, U.S. v. Reyes-Contreras, __ F.3d __ (5th Cir. Nov. 30, 2018) No. 16-41218.

5th Circuit, en banc, finds Missouri voluntary manslaughter is a “crime of violence.” (340) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. The guideline for that statute, § 2L1.2(b)(1)(A), provides for a 16-level enhancement if the defendant has a prior conviction for a “crime of violence.” That term is defined in part to include any statute that has as an element “the use, attempted use, or threatened use of physical force against the person of another.” Defendant had a prior conviction for voluntary manslaughter under Missouri Revised Statute § 565.023. Missouri defines voluntary manslaughter as causing the death of another under the influence of sudden passion or assisting another in the commission of self-murder. Sitting en banc, the Fifth Circuit held that even if § 565.023 is indivisible and therefore the categorical approach applies, both prongs of the Missouri statute require the use of force. It therefore qualifies as a “crime of violence.” U.S. v. Reyes-Contreras, __ F.3d __ (5th Cir. Nov. 30, 2018) No. 16-41218.

5th Circuit finds no plain error in miscalculating criminal history. (340)(504) Defendant pleaded guilty to illegal reentry after deportation. At sentencing, the district court found that three of defendant’s prior convictions should be counted in his criminal history. Although this resulted in a guideline range of 24 to 30 months, the court varied upward, and imposed a 50-month sentence, citing defendant’s lengthy criminal history, including two recent assaults on a family member. Reviewing for plain error, the Fifth Circuit found that the district court it was error to count the three prior convictions, so the guidelines range should have been 21 to 27 months. Nevertheless, the panel affirmed, finding no reasonable probability that defendant would have received a lower sentence if the district court had used the correct sentencing range. U.S. v. Nino-Carreon, __ F.3d __ (5th Cir. Dec. 3, 2018) No. 17-11433.

5th Circuit says release from prison did not moot alien’s claim that prior conviction was not an aggravated felony. (340)(850) Defendant, convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326, argued that his prior conviction did not constitute an “aggravated felony” under the immigration laws. Even though defendant had been released from prison, the Fifth Circuit found that his challenge was not moot because the question he raised determined whether he was convicted under § 1326(b)(1) or § 1326(b)(2). The court held that § 1326(b)(2) is an “aggravated felony,” while § 1326(b)(1) is not. U.S. v. Valle-Ramirez, __ F.3d __ (5th Cir. Nov. 19, 2018) No. 15-41719.

5th Circuit says Georgia aggravated assault is an “aggravated felony.” (340) A defendant convicted of illegal reentry after deportation in violation of 8 U.S.C. § 1326 is subject to an enhanced sentence if defendant has a prior conviction for an “aggravated felony.” That term is defined by reference to the definition in 18 U.S.C. § 16. In Sessions v. Dimaya, 138 S.Ct 1204 (2018), the Supreme Court held that the “residual clause” of § 16(b) was unconstitutionally vague. As a result, an offense qualifies as an aggravated felony under § 16 only if it has “as an element the use, attempted use, or threatened use of physical force.” The Fifth Circuit held that a conviction for aggravated assault under Georgia Code Annotated § 16-5-20(a) or § 16-5-21(a) is an aggravated felony. U.S. v. Valle-Ramirez, __ F.3d __ (5th Cir. Nov. 19, 2018) No. 15-41719.

3d Circuit says New Jersey drug convictions are “controlled substance offenses.” (340)(520) Defendant was convicted under New Jersey Statutes Annotated § 2C:35(a)(1) of possessing cocaine with intent to distribute and distribution of cocaine. The Third Circuit held that the New Jersey offenses were controlled substance offenses because New Jersey’s attempt law in no broader than federal law. Martinez v. Attorney General, __ F.3d __ (3d Cir. Oct. 16, 2018) No. 17-3434.

Commission says “sentence imposed” includes sentence imposed after alien’s removal. (340) Abrogating opinions in U.S. v. Franco -Galvan, 864 F.3d 338 (5th Cir. 2017) and U.S. v. Martinez , 870 F.3d 1163 (9th Cir. 2017), the Commission amended Application Note 2 to 2L1.2 to clarify that an alien’s prior “sentence imposed” includes any term of imprisonment on revocation of probation, parole, or supervised release, regardless of whether the revocation occurred before or after the defendant’s first (or any subsequent) order of removal. This is consistent with the Chapter Four criminal history rules and with a 2016 amendment to §2L1.2. Proposed Amendment 5, effective Nov. 1, 2018.

5th Circuit finds using incorrect version of guidelines violated ex post facto clause. (194)(340) Defendant pled guilty to reentering the country after deportation. He was sentenced under the 2016 guidelines in effect the date he was sentenced. He argued for the first time on appeal that the use of the 2016 guidelines violated the ex post facto clause because his pror convictions were neither crimes of violence nor aggravated felonies under the 2015 guidelines in effect at the time of the crime. The Fifth Circuit agreed. Under the 2015 version of § 2L1.2 defendant’s Florida burglary conviction was not an aggravated felony because he was only sentenced to 364 days of imprisonment. Nor was it a crime of violence because the statute was too broad, and included curtilages in its definition of a dwelling. U.S. v. Urbina-Fuentes, __ F.3d __ (5th Cir. Aug. 20, 2018) No. 17-40424.

2nd Circuit holds New York second-degree attempted robbery was crime of violence under force clause. (340) Defendant pled guilty to illegal reentry after previously having been deported following commission of an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2). He challenged the district court’s finding that his prior New York conviction for attempted robbery in the second degree, in violation of N.Y. Penal Law §§ 110.001 and 160.10, qualified as a crime of violence under § 2L1.2. The Second Circuit ruled that while New York attempted robbery in the second degree was not a crime of violence under the enumerated offenses clause, it was a crime of violence under the force clause. New York’s robbery offense was a crime of violence under the force clause of application note 1(B)(iii) to § 2L1.2, because it includes as an element the use of violent force. U.S. v. Pereira-Gomez, __ F.3d __ (2d Cir. Sept. 7, 2018) No. 17-952-cr.

5th Circuit vacates illegal reentry sentence in light of en banc holding that Texas burglary is not a violent felony. (340) Defendant pled guilty to illegal reentry after deportation, and received a 12-level increase under § 2L1.2(b)(1)(A)(ii) for a 1990 conviction for burglary of a habitation under Texas Penal Code § 30.02(a)(1). While defendant’s appeal was pending, the Fifth Circuit, en banc, held in U.S. v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc) that a conviction under the same Texas burglary statute was not a violent felony under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii). Given the court’s ruling in Herrold, the government conceded that defendant was entitled to resentencing, but asked for a delay until the Supreme Court decided whether to review the en banc decision. The Fifth Circuit rejected that suggestion and vacated and remanded for resentencing. U.S. v. Islas-Saucedo, __ F.3d __ (5th Cir. Sept. 11, 2018) No. 17-40672.

5th Circuit refuses to correct error in applying 16-level increase for Texas burglary conviction. (340) (855) Defendant pled guilty to illegal reentry, and received a 16-level increase under § 2L1.2(b)(1)(A)(ii) based on his conviction for burglary of a habitation under Texas Penal Code § 30.03(a)(1). While his appeal was pending, the Fifth Circuit en banc decided U.S. v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc), which abrogated prior decisions holding that Texas Penal Code § 30.03(a)(1) was generic burglary. Although it was “now plain in light of Herrold” that defendant’s burglary conviction did not qualify for the 16-level increase, the Fifth Circuit upheld his sentence because defendant failed to satisfy the fourth prong of the plain error test. A careful review of defendant’s burglary conviction revealed that the state-court jury necessarily found (based on the state court’s instructions and charge) that defendant committed generic burglary or generic aggravated assault or both. Each of those offenses was a “crime of violence” as defined in § 2L1.2(b)(A)(ii). Thus, the error did not seriously affect the fairness or integrity of the judicial proceedings in light of the fact of the case. U.S. v. Fuentes-Canales, __ F.3d __ (5th Cir. Aug. 30, 2018) No. 15-41476.

9th Circuit holds California methamphetamine offense is not a “controlled substance” crime. (340) Under the categorical approach, to be a “controlled substance offense,” a state violation must match the federal offense. The Ninth Circuit held that a California conviction involving methamphetamine is not a categorical match for the federal statute set forth in the Controlled Substances Act. The definition of “methamphetamine” in California Health & Safety Code § 11055, which is incorporated into almost all California drug statutes, includes “salts, isomers, and salts of its isomers.” Section 11033 defines “isomer” to be “optical and geometrical isomers,” unless otherwise defined. Because the federal CSA does not reach “geometric isomers,” the state statute is broader and is not a categorical match for the federal statute. Lorenzo v. Sessions, __ F.3d __ (9th Cir. Aug. 29, 2018) No. 15-70814.

5th Circuit allows aggregated 5-year sentence to be used to enhance alien’s sentence. (340) Defendant pleaded guilty to being unlawfully present in the United States after deportation. He had three prior convictions for which he received an aggregate sentence of five years. The district court applied a 10-level enhancement under § 2L1.2(b)(2)(A) based on the aggregated five-year sentence. For the first time on appeal, defendant argued that this was error because the guideline refers to a sentence resulting from a single felony conviction. The government argued that the sentence-aggregation rule from § 4A1.2(a)(2) applied to § 2L1.2(b)(2)(A). The Fifth Circuit found it unnecessary to resolve the issue, because the error was not plain. This is because this circuit has yet not addressed whether the sentence-aggregation rule in § 4A1.2(a)(2) also applies to § 2L1.2(b)(2). U.S. v. Ponce-Flores, __ F.3d __ (5th Cir. Aug. 14, 2018) No. 17-40807.

9th Circuit finds California assault with a deadly weapon is a “crime of violence.” (340)(504) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. Defendant was deported because an immigration judge found his prior conviction for assault with a deadly weapon under California Penal Code § 245(a)(1) to be a “crime of violence” under 18 U.S.C. § 16(a). The Ninth Circuit agreed that a violation of California Penal Code § 245(a)(1) is categorically a “crime of violence” under Section 16(a) because that offense has an element the use, attempted use, or threatened use of force. U.S. v. Vasquez-Gonzalez, __ F.3d __ (9th Cir. Aug. 22, 2018) No. 15-10285.

9th Circuit applies modified categorical approach to find cocaine offense is a controlled substance offense. (340)(504) Defendant had a prior conviction for possession for sale of cocaine salt, in violation of California Health & Safety Code § 11351. The Ninth Circuit has previously held that § 11351 is divisible with respect to the type of controlled substance involved. Applying the modified categorical approach, the Ninth Circuit determined that defendant’s conviction was for possession for sale of cocaine salt and therefore his offense matched an offense under federal law. Lopez v. Sessions, __ F.3d __ (9th Cir. Aug. 22, 2018) No. 15-72747.

9th Circuit holds that California receiving stolen property is an aggravated felony. (340)(504) Defendant was charged with illegal entry after deportation, in violation of 8 U.S.C. § 1326. He had a prior conviction under California Penal Code § 496(a) for receiving stolen property. Defendant claimed that his deportation was invalid because a violation of Section 496(a) is not a “theft offense” as that term is defined in the immigration statute. Therefore, he argued, Section 496(a) does not define an aggravated felony justifying his deportation. The Ninth Circuit upheld defendant’s conviction, finding that receiving stolen property under California law categorically matches the generic federal crime of receipt of stolen property and therefore qualifies as a “theft offense” and an aggravated felony. U.S. v. Flores, __ F.3d __ (9th Cir. Aug. 28, 2018) No. 16-50096.

5th Circuit holds triggering date for illegal reentry was date of defendant’s reentry, not when he was found. (340)(504) Defendant pled guilty to illegal reentry after deportation. He argued that the district court erred in applying § 2L1.2(b) to enhance his sentence based on his prior 1996 and 1998 felony convictions. The Fifth Circuit found no merit to defendant’s contention that the prior convictions were too remote from the date he was found illegally in the U.S. and, thus, should not have received criminal history points under U.S.S.G. § 4A1.2(e)(1). A § 1326 offense begins at the time the defendant illegally re-enters the country and does not become complete until the defendant is found by immigration authorities in the United States. Thus, under § 4A1.2(e), the triggering date for prior convictions is the date of the defendant’s illegal reentry, not the date on which he was found. Because defendant’s prior convictions were within the time period, the district court properly enhanced his offense level under § 2L1.2(b) based on those convictions. U.S. v. Ponce, __ F.3d __ (5th Cir. July 23, 2018) No. 17-20329.

9th Circuit finds Nevada burglary with a deadly weapon is a crime of violence. (340)(504) Defendant, convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326, had a prior conviction under Nevada Revised Statute § 200.481(2)(e)(1) for burglary with the use of a deadly weapon. The Ninth Circuit held that this offense was categorically for a “crime of violence” as defined by 18 U.S.C. § 16(a) because it had as an element the use, attempted use, or threatened use of force. U.S. v. Guizar-Rodriguez, __ F.3d __ (9th Cir. Aug. 17, 2018) No. 16-10507.

9th Circuit says Arizona third-degree escape is not a crime of violence. (340)(504) Defendant had a prior conviction under Arizona Revised Statutes § 13-2502 for third-degree escape. That statute makes it a felony to escape following an arrest or conviction for a misdemeanor. The Ninth Circuit held that this conviction categorically was not a “crime of violence” under 18 U.S.C. § 16(a) because it did not necessarily involve physical force. Dent v. Sessions, __ F.3d __ (9th Cir. Aug. 17, 2018) No. 17-15662.

1st Circuit considers alien’s challenge to increase for prior conviction despite possible waiver. (340)(855) Defendant’s sentence for illegal entry was increased by four levels under § 2L1.2(b)(2)(D) for having been deported after a prior conviction. His guideline range was 46-57 months, but the court varied down to 42 months. For the first time on appeal, defendant challenged the increase for the prior conviction, citing Application Note 3 to § 2L1.2 which says that only convictions that receive criminal history points should be used for purposes of enhancement. Without the enhancement, defendant’s guidelines range would have been only 30-37 months. The government contended that defendant waived this claim by conceding to the district court that the PSR’s guideline range of 46-57 months was correct. The First Circuit was dubious of the government’s waiver rationale, but found that even if there was a waiver by defendant, then in the interests of justice it was appropriate to excuse it. U.S. v. Romero, __ F.3d __ (1st Cir. July 18, 2018) No. 17-1702.

10th Circuit says court properly considered and rejected defendant’s economic motivation argument. (340)(741) Defendant appeared before the district court following his fifth conviction for illegal reentry. Focusing heavily on defendant’s criminal history and noting that none of the earlier sentences deterred defendant, the district court varied upward from defendant’s guideline range of 21-27 months, to a sentence of 36 months. On appeal, defendant argued that the district court failed to “meaningfully consider” his argument that his economic motivation for illegally reentering the United States mitigated the seriousness of his offense. The Tenth Circuit, reviewing for plain error, found no procedural error. The district court discounted defendant’s argument on the ground that he had earned less money during the seven-plus years he had spent in a United States prison then he would have in Mexico. The district court also rejected the argument based on the limited amount of time between his most recent deportation and his present offense. U.S. v. Chavez-Morales, __ F.3d __ (10th Cir. July 3, 2018) No. 17-2124.

5th Circuit finds any error in treating Florida elder abuse as crime of violence was harmless. (340)(520) Defendant pled guilty to being found in the U.S. after deportation. The district court found that his prior Florida conviction for elder abuse was a crime of volence under § 2L1.2, resulting in a 37-46 month guidelines range. The court varied upward and imposed a 72-month sentence. The Fifth Circuit found that any error in treating the Florida conviction as a crime of violence was harmless, becaue the district court considered different potential guideline sentences, and it was clear that it would have arrived at the same 72-month sentence under any of them. The court noted that a previous 60-month sentence had not dissuaded defendant. U.S. v. Vega-Garcia, __ F.3d __ (5th Cir. June 25, 2018) No. 17-50392.

5th Circuit holds Texas indecency with a child by sexual contact was not a crime of violence. (340)(520) Defendant pled guilty to illegal reentry. He received a 16-level crime of violence enhancement under the 2015 version of § 2L1.2(b)(1)(A)(ii), based on his Texas conviction for indecency with a child by sexual contact, in violation of Texas Penal Code § 21.11(a)(1). The 2015 definition of a crime of violence included “sexual abuse of a minor.” While defendant’s appeal was pending, the Supreme Court decided Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), which held that “in the context of statutory rape offenses focused solely on the age of the participants, the generic federal definition of ‘sexual abuse of a minor’ … requires the age of the victim to be less than 16.” The Texas statute under which defendant was convicted made it a felony to engage in sexual contact with a child younger than 17. Thus, the Texas statute was categorically broader than the generic federal definition of “sexual abuse of a minor.” The error met plain error standards. U.S. v. Sanchez-Arvizu, __ F.3d __ (5th Cir. June 20, 2018) No. 67-41378.

5th Circuit holds that Texas sexual assault was not a crime of violence. (340)(520) Defendant pled guilty to illegal reentry after deportation, and received a 16-level crime of violence increase under § 2L1.2(b)(1)(A)(ii) based on his prior conviction for sexual assault under Texas Penal Code § 22.011(a)(2). The application notes to § 2L1.2 of the 2015 guidelines define crime of violence to include “statutory rape” and “sexual abuse of a minor.” In light of the Supreme Court’s decision in Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017), the Fifth Circuit held that a conviction under Texas Penal Code § 22.011(a)(2) is not a crime of violence within the meaning of § 2L1.2(b)(1)(A)(ii) of the 2015 guidelines. Texas Penal Code § 22.011(a)(2) proscribes sexual conduct with a “child” – defined as “a person younger than 17 years of age” – “regardless of whether the person knows the age of the child at the time of the offense.” Because § 22.011(a)(2) criminalizes sexual intercourse with a victim under 17, rather than a victim under 16, and does so “based solely on the age of the participants,” it was categorically overbroad under Esquivel-Quintana. U.S. v. Hernandez-Avila, __ F.3d __ (5th Cir. June 13, 2018) No. 16-51009.

9th Circuit rules Washington third-degree sexual assault is an aggravated felony. (340)(504) The term “aggravated felony” under immigration law is defined to include, among other offenses, “sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). Defendant had a conviction under Washington Revised Statute §§ 9A.36.140(1) and 9A.36.031(1)(f) for sexual assault of a child in the third degree. The Ninth Circuit held that defendant’s prior Washington conviction categorically constituted an “aggravated felony.” Quintero-Cisneros v. Sessions, __ F.3d __ (9th Cir. June 11, 2018) No. 13-72632.

5th Circuit upholds “risk” increase for transporting unrestrained aliens in bed of truck for a short distance. (340) Defendant was the driver of a truck that picked up a number of illegal aliens, who climbed into the bed and cab of the truck. The truck was stopped almost immediately by Border Patrol agents. The district court applied an enhancement under §2L1.1(b)(6) for “intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.” On appeal, defendant argued that because he drove the passengers only a de minimis distance at a de minimis speed before being promptly stopped, he never subjected the aliens to “a substantial risk of death or serious bodily injury.” The Fifth Circuit disagreed, and upheld the enhancement. “The moment [defendant] started to drive with unrestrained persons lying in the bed of his truck, he subjected them to a substantial risk of death or serious bodily injury.” Transporting anyone in the bed of a pickup is inherently dangerous. U.S. v. Maldonado-Ochoa, 844 F.3d 534 (5th Cir. 2016).

11th Circuit holds Florida second degree burglary was not crime of violence. (340) Defendant pled guilty to illegal reentry, and received a 16-level crime of violence increase under §2L1.2(b)(1)(A)(ii) based on his prior Florida conviction for second degree burglary of a dwelling under Florida Statute §810.02(3). The Eleventh Circuit reversed, holding that the Florida conviction was not categorically a crime of violence, and did not qualify as one under the modified categorical approach. Florida’s definition of a dwelling, which included the curtilage of the building, was broader than the generic definition of a dwelling. Curtilage, defined in Florida as an enclosure around a residence, is not categorically “used or intended for use as a human habitation, home or residence” because it can include the yard and potentially even outbuildings. The Florida statute was not divisible, so the court erred in applying the modified categorical approach. U.S. v. Garcia-Martinez, 845 F.3d 1126 (11th Cir. 2017).

1st Circuit says passport not a “means of identification,” but an “identification document.” (125)(218) (340) Defendant was convicted of making false statements in a passport application, aggravated identity theft, and use of a falsely-obtained Social Security number. The district court applied a four-level enhancement under §2L2.2(b)(3)(A) for the use of a fraudulently obtained U.S. passport to obtain a new passport. Defendant argued that the enhancement constituted improper double counting under Application Note 2 to §2B1.6, which prohibits application of an enhancement for use of a “means of identification” when the defendant is also convicted of aggravated identity theft. The First Circuit disagreed. A passport is not a “means of identification,” but rather an “identification document.” Federal law distinguishes between “means of identification” and “identification documents.” See 18 U.S.C. §1028(d). The law lists a passport number as a means of identification, but does not list a passport itself. Application Note 2 applied to use of a means of identification, not the use of an identification document. U.S. v. Nolte, 844 F.3d 331 (1st Cir. 2016).

5th Circuit holds that “use of passport” enhancement applied to fraudulent use of passport card. (340) Defendant, a Mexican citizen who had previously been deported from the U.S., attempted to enter the United States using a valid U.S. passport card belonging to another man. He pled guilty to attempted illegal re-entry by a removed alien and improper use of another’s passport. He challenged on appeal a §2L2.2(b)(3)(A) increase for “fraudulently obtain[ing] or us[ing] a United States passport,” contending that the increase applies to the use of a regular passport, not to a passport card. The Fifth Circuit disagreed, and upheld the enhancement. Section 2L2(b)(3)(A) does not distinguish between passport cards and “regular passports.” The Code of Federal Regulations unequivocally states that a passport card is a United States passport. It lists passport cards as one of four “[t]ypes of passports” issued by the Secretary of State. 22 C.F.R. §1.3. Reading §2L2.2(b)(3)(A) to extend to passport cards does not intrude on the State Department’s broad rule-making authority regarding passports. U.S. v. Casillas-Casillas, 845 F.3d 623 (5th Cir. 2017).

5th Circuit holds Ohio burglary conviction was not crime of violence. (340)(520) Defendant was convicted of illegal reentry after deportation, and received a 12-level crime of violence enhancement under §2L1.2 based on his prior Ohio conviction for burglary. Defendant argued that the Ohio offense did not qualify as the enumerated offense of “burglary of a dwelling” because Ohio permits conviction “even though the defendant forms the intent to commit a crime only after the trespass.” The district court did not address this argument. On appeal, the Fifth Circuit reversed, holding that the Ohio burglary conviction was not “burglary of a dwelling” and therefore was not a crime of violence. The Ohio offense was overly broad because it was not congruent with generic burglary. U.S. v. Bernal-Aveja, 844 F.3d 206 (5th Cir. 2016).

11th Circuit upholds vulnerable victim increase for using stolen medical records to file fraudulent tax returns. (410) Defendant and his wife stole identities from patients at the Department of Veterans’ Affairs, ambulance services, hospitals, and clinics, to electronically file fraudulent tax returns. Defendant argued for the first time on appeal that the district court erred in applying a §3A1.1(b)(1) vulnerable-victim enhancement based on the mere possession of medical records, without requiring proof that any personal identifying information from those records had actually been used. The Eleventh Circuit found no error, plain or otherwise, because defendant admitted at the guilty plea colloquy that he had used the information in the medical records to file fraudulent tax returns. U.S. v. Cobb, 842 F.3d 1213 (11th Cir. 2016).

5th Circuit rejects Ninth Circuit and holds that Ore-gon third-degree rape was crime of violence. (340) (520) Defendant pled guilty to being found in the United States after deportation. He argued that the district court erred in applying a 12-level crime of violence enhancement under §2L1.2(b)(1)(A)(ii) based on his prior Oregon conviction of rape in the third degree. The Fifth Circuit held that defendant failed to show that the court erred by ruling that the Oregon conviction was categorically abuse of a minor. First, the Oregon offense required the in¬volvement of a minor because it called for the victim to be under the age of 16. Second, the offense was “sexual” in nature because it had “sexual arousal or gratification as its purpose.” Finally, the conduct was abusive. The panel rejected Ninth Circuit decisions holding that the Oregon offense lacked the abuse element in that it did not expressly prohibit conduct that caused physical or psy¬chological harm in light of the age of the victim. Those decisions were not binding authority on the Fifth Circuit and were inconsistent with Fifth Circuit precedent. U.S. v. Penaloza-Carlon, 842 F.3d 863 (5th Cir. 2016).

9th Circuit rules drug trafficking under Oregon law is not an aggravated felony. (340)(504) The term “ag¬gravated felony” in 8 U.S.C. §1101(A)(43)(b) in-cludes two federal controlled substance offenses: (1) “il¬licit traf¬ficking in a controlled substance,” which includ¬es (2) any “drug trafficking crime.” Defendant had a prior convic¬tion under Oregon Revised Statutes 475.992(1)(a) for delivery of heroin. The Ninth Circuit held that the Ore¬gon statute does not categorically describe an “aggravat¬ed felony” because it allows conviction for solicitation to commit a drug-trafficking offense. Sandoval v. Yates, __ F.3d __ (9th Cir. Jan. 23, 2017) No. 13-71784.

1st Circuit holds that death of passenger who jumped from smuggling ship was foreseeable. (340) Defendant pled guilty to bringing aliens into the U.S. by boat. The First Circuit upheld a ten-level enhancement under U.S.S.G. §2L1.1(b)(7)(D) for the death of a passenger who jumped from the boat and drowned. The district court did not clearly err in finding that the passenger’s death was a reasonably foreseeable result of defendant’s actions. Defendant admitted using an unseaworthy and overcrowded vessel to transport passengers through dangerous waters. He could have reasonably foreseen the possibility that the vessel would be spotted by the authorities as it approached shore. He also could have foreseen the possibility that some passengers, desperate to avoid apprehension and reach United States soil, might leap into the sea. The victim was not the only passenger to have taken this risk, since 11 other passengers also jumped into the water. Given defendant’s concession that the rough sea conditions were foreseeable, it was foreseeable that passengers jumping overboard might drown. U.S. v. De La Cruz-Garia, 842 F.3d 1 (1st Cir. 2016).

9th Circuit holds that violation of a protective order involving a violent act is a crime of violence. (340)(504) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. §1326. The applicable guideline, §2L1.2, requires an enhanced guideline range for a defendant who has a prior “crime of violence.” The guideline defines that term to include any offense “that has as an element the use, attempted use, or threatened use of physical force against the person of another.” Defendant had a prior conviction under California Penal Code §273.6(d) for violation of a protective order involving an act of violence or a credible threat or violence. The Ninth Circuit held that defendant’s prior conviction categorically constituted a crime of violence under §2L1.1. U.S. v. Acevedo-De La Cruz, __ F.3d __ (9th Cir. Jan. 5, 2017) No. 15-10418.

(U.S.S.G. §2L)

[Editor’s Note: Cases interpreting the phrases “crime of violence,” “violent felony,” “controlled substance offense,” and the like can be found in this service under firearms (330), immigration (340), career offenders (520) and Armed Career Criminals (540). Although the guideline definitions vary, readers may find it useful to consult all four categories].

5th Circuit finds Tennessee aggravated burglary conviction was enumerated crime of violence. (340) Defendant pled guilty to unlawful reentry in violation of 8 U.S.C. §1326(a) and (b). The district court applied a 16-level crime of violence increase under §2L1.2 based on his prior conviction under §39-14-403 of the Tennessee Code for aggravated burglary. Defendant argued that the offense was categorically broader than enumerated offense of “burg¬lary of a dwelling.” The Fifth Circuit disagreed, finding that the Tennessee conviction, like the Texas offense in U.S. v. Garcia-Mendez, 420 F.3d 454 (5th Cir. 2005), was equivalent to burglary of a dwelling. Both statutes applied to burglary of a habitation, and described a “habitation” as a structure “adapted for the overnight accommodation of persons,” and as including “each structure appurtenant to or connected with” the structure. Furthermore, the two states’ respective statutes defined “burglary” as including the entry of a building not open to the public, without the consent of the property owner, with the intent to commit a “felony, theft, or assault” therein. U.S. v. Castro-Alfonso, 841 F.3d 292 (5th Cir. 2016).

5th Circuit says challenge to PSR was not mooted by defendant’s deportation. (340)(760) Defendant pled guilty to illegal reentry following deportation. He object¬ed to the PSR’s recommendation of an 8-level enhancement for having committed an aggravated felony. The district court agreed and sustained his objection. Defendant then asked the court to order the PSR to be corrected to reflect that he did not commit an aggravated felony. The district court refused, suggesting that its holding would be apparent in the Statement of Reasons attached to the judgment. Defendant appealed, but the government argued that the appeal was moot because defendant had completed his sentence and had been deported.. The Fifth Circuit held the deportation did not moot the appeal because the erroneous PSR implicated sufficient collateral consequences to preserve a live controversy. To the extent that a PSR is “like a judgment,” a challenge to an erroneous PSR is not moot after deportation. Furthermore, if the PSR could cause an immigration official to conclude that defendant was in fact convicted of an “aggravated felony,” it could impact his ability to legally reenter the country in the future under 8 U.S.C. §1182(a)(9)(A). U.S. v. Ramirez-Gonzalez, 840 F.3d 240 (5th Cir. 2016).

5th Circuit says court need not order substantive correction of PSR’s “recommendation.” (340)(760) Defendant pled guilty to illegal reentry following deportation. He objected to the PSR’s recommendation of an 8-level aggravated felony enhancement. The district court agreed and sustained his objection. Defendant then asked the court to order the PSR substantively corrected to say that defendant did not commit an aggravated felony. The district court refused, indicating that its finding would be apparent in the Statement of Reasons attached to the judgment. Defendant appealed, seeking a substantive correction to the PSR. The Fifth Circuit ruled that the district court was not required to order a substantive correction to the PSR. The district court found on the record that contrary to the PSR, defendant’s wire fraud conviction did not qualify as an aggravated felony, and stated in its Statement of Reasons that defendant was only subject to the 4-level “any other felony” increase. There was no error to be corrected. The PSR’s recommendation lang¬uage was not a mistake at all, much less the sort of mistake subject to correction under Rule 36. U.S. v. Ramirez-Gonzalez, 840 F.3d 240 (5th Cir. 2016).

5th Circuit reaffirms use of modified categorical approach for Texas burglary statute. (340)(520) Defendant pled guilty to illegally reentering the U.S. after deportation, and received a 16-level crime of violence enhancement under §2L.2(b)(1)(A)(ii) based on his prior Texas burglary conviction. The district court relied on 5th Circuit precedent holding that under the modified categorical approach, Texas Penal Code §30.02(a) was a divisible statute, and that §30.02(a)(1) matched the generic definition of “burglary of a dwelling.” See U.S. v. Conde–Castaneda, 753 F.3d 172, 175–79 (2014). ¬The Fifth Circuit rejected defendant’s argument that this precedent was no longer controlling in light of Mathis v. U.S., __ U.S. __, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). Mathis held that statute that outlines only various means of committing the predicate offense is not “divisible,” whereas a statute that sets forth alternative elements of each offense is divisible. Unlike the statute in Mathis, the Texas burglary statute did not provide an illustrative list or outline multiple ways to satisfy a single element. Moreover, the Texas Court of Criminal Appeals has classified this statute as elements-based, and there¬fore divisible. Accordingly, and the court properly applied the modified categorical approach. U.S. v. Uribe, 838 F.3d 667 (5th Cir. 2016).

9th Circuit uses modified categorical approach to find sexual abuse crime of violence. (340)(504) Defendant was convicted of illegal reentry after deportation, Before his deportation, he sustained a conviction for attempted sexual abuse in the first degree under Oregon Revised Statute §163.427(1)(a). At sentencing, the district court found that defendant’s prior conviction was a “crime of violence,” resulting in a 16-level increase in his offense level under §2L1.2(b)(1)(A)(ii). Applying the modified categorical approach, the Ninth Circuit held that defendant’s conviction under Oregon law was a “crime of violence” and affirmed. The court found that defendant’s plea colloquy established that he had committed “sexual abuse of a minor” or “forcible sexual abuse” within the meaning of the guidelines. U.S. v. Rocha-Alvarado, __ F.3d __ (9th Cir. Dec. 12, 2016) No. 15-10517.

10th Circuit says New Mexico aggravated ADW was categorically a crime of violence. (340) Defendant pled guilty to illegally reentering or remaining in the United States after deportation, The district court found that his prior New Mexico conviction for aggravated assault was a crime of violence, and applied a 16-level increase under §2L1.2(b)(1)(A)(ii). The Tenth Circuit affirmed. New Mexico defines “deadly weapon” as “any firearm …; or any weapon which is capable of producing death or great bodily harm …; or any other weapons with which dangerous wounds can be inflicted.” N.M. Stat. Ann. §30–1–12(B). Employing such a weapon in an assault necessarily threatens the use of physical force, i.e., “force cap¬able of causing physical pain or injury to another per¬son.” The panel therefore concluded that aggravated ADW under N.M. Stat. Ann. §30–3–2(A) was categorically a crime of violence under §2L1.2. U.S. v. Maldonado-Palma, 839 F.3d 1244 (10th Cir. 2016).

6th Circuit says court’s approval of guilty plea was not “conviction.” (340) (520) Defendant was convicted of illegal entry. The district court increased his sentence by 16 levels based on his prior Tennessee assault case that contained a “Waiver of Trial by Jury and Acceptance of Plea of Guilty,” signed by defendant and approved by the Tennessee court in a form order. However, immigration authorities deported defendant before the Tennessee court pronounced sentence or entered a judgment. In the present case, the district court found that the order accepting defendant’s “Waiver of Trial by Jury and Acceptance of Plea of Guilty” constituted a “conviction” for a crime of violence, mandating a 16-level increase under §2L1.2(b)(1)(A)(ii). The Sixth Circuit reversed, holding that “conviction,” as used in §2L1.2(b)(1)(A)(ii), does not include the state court’s acceptance of defendant’s guilty plea. A plea agreement approved in a form order falls well short of “a formal judgment of guilt” under 8 U.S.C. §1101(a)(48)(A). U.S. v. Canelas-Amador, __ F.3d __ (6th Cir. Sept. 14, 2016) No. 15-6035.

11th Circuit says Florida felony battery committed by mere touching was not crime of violence. (340) Defendant pled guilty to illegally reentering the U.S. after deportation. The Eleventh Circuit concluded that his prior conviction for felony battery under Fla. Stat. §784.041 did not qualify as a crime of violence under §2L1.2 because it can be committed by mere touching. Mere touching does not involve “the use, attempted use, or threatened use of physical force against the person of another.” The element of “[c]aus[ing] great bodily harm, permanent disability, or permanent disfigurement” did not make felony battery a crime of violence, because the statute did not require the offender to intentionally or knowingly cause bodily harm. The statute could be violated by simply tapping the shoulder of a person who stood at the top of stairs, and was startled and fell down the stairs. U.S. v. Vail-Bailon, __ F.3d __ (11th Cir. Sept. 28, 2016) No. 15-10351.

5th Circuit holds Ohio attempted unlawful sexual conduct with a minor was a crime of violence. (340) Defendant was convicted of illegal reentry following deportation. The district court imposed a 16-level enhancement under §2L1.2 based on its finding that his Ohio conviction for attempted unlawful sexual conduct with a minor constituted a crime of violence. The Ohio conviction involved defendant soliciting sex online from a per¬son he thought was a 14-year-old girl, but who was actually an undercover detective. Defendant argued that the Ohio statute under which he was convicted did not comport with the generic, contemporary meaning of “sexual abuse of a minor” because it required only a reckless state of mind as to the minor’s age, not actual knowledge. The Fifth Circuit rejected the argument, noting that it had previously held that Virginia and Louisiana statutes that lacked any mens rea requirement nonetheless fell within the generic definition of “sexual abuse of a minor.” See Contreras v. Holder, 754 F.3d 286, 295 (5th Cir. 2014); Ramos–Garcia v. Holder, 483 Fed.Appx. 926 (5th Cir. 2012). Thus a statute like Ohio’s, requiring at least a reckless state of mind concerning the age of the victim qualified as “sexual abuse of a minor.” U.S. v. Rivas, 836 F.3d 514 (5th Cir. 2016).

5th Circuit holds Missouri sexual misconduct with a child was a crime of violence. (340) Defendant pled guilty to illegal reentry after deportation. The district court applied a 16-level crime of violence enhancement under §2L1.2(b)(1)(A)(ii) based on defendant’s prior Missouri conviction for sexual misconduct involving a child. The PSR had found that the conviction qualified as an enumerated crime of violence, specifically, “sexual abuse of a minor” under Note 1(B)(iii) to §2L1.2. Defendant argued that the state conviction did not fall within the guidelines’ definition because “[u]nder Missouri law, a person can be convicted of ‘sexual misconduct involving a child’ even if the other person is a police officer masquerading as a child.” The Fifth Circuit rejected the argument, holding that defendant’s Missouri conviction for sexual misconduct with a child was a crime of violence. Courts require “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of the crime.” Defendant did not meet this showing. He did not point to a single case where any court has applied the peace officer affirmative defense provision to a subpart (3) charge, which was his charge of conviction. This made sense because Missouri had a separate “enticement” crime. U.S. v. Lara-Martinez, 836 F.3d 472 (5th Cir. 2016).

10th Circuit says federal drug conspiracy is not categorically a drug trafficking offense. (340) Defendant was convicted of illegally reentering the country after deportation. The district court applied a 12-level increase under §2L1.2(b)(1)(B) and its Application Note 5 for a prior “drug trafficking offense” based on his prior conviction for conspiracy to possess with intent to distribute 50 kilograms or more of marijuana, in violation of 21 U.S.C. §846. Application Note 5 to §2L1.2 states, “Prior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses.” Defendant argued that, under Taylor v. U.S., 495 U.S. 575 (1990), his prior federal drug conspiracy conviction was not categorically a “drug trafficking offense” be¬cause conspiracy under §846 does not require proof of an overt act—which, defendant argued, was part of the generic definition of “conspiracy” to which Application Note 5 referred. The Tenth Circuit agreed, noting that Application Note 5 does not define “conspiracy,” and that the generic definition of conspiracy required an overt act. Defendant’s conspiracy conviction under §846 was “a categorical mismatch for the generic definition of ‘conspiracy’ in U.S.S.G. §2L1.2 Application Note 5” and defendant should receive an 8-level enhancement instead of 12. Other circuits have held the opposite, but the panel rejected those decisions. U.S. v. Martinez-Cruz, 836 F.3d 1305 (10th Cir. 2016).

5th Circuit holds Ohio attempted unlawful sexual conduct with a minor was a crime of violence. (340) Defendant was convicted of illegal reentry following deportation. The district court imposed a 16-level enhancement under §2L1.2 based on its finding that his Ohio conviction for attempted unlawful sexual conduct with a minor constituted a crime of violence. The Ohio conviction involved defendant soliciting sex online from a person he thought was a 14-year-old girl, but who was actually an undercover detective. Defendant argued that the Ohio statute under which he was convicted did not comport with the generic, contemporary meaning of “sexual abuse of a minor” because it required only a reckless state of mind as to the minor’s age, not actual knowledge. The Fifth Circuit rejected the argument, noting that it had previously held that Virginia and Louisiana statutes that lacked any mens rea requirement nonetheless fell within the generic definition of “sexual abuse of a minor.” See Contreras v. Holder, 754 F.3d 286, 295 (5th Cir. 2014); Ramos–Garcia v. Holder, 483 Fed.Appx. 926 (5th Cir. 2012). Thus a statute like Ohio’s, requiring at least a reckless state of mind concerning the age of the victim qualified as “sexual abuse of a minor.” U.S. v. Rivas, 836 F.3d 514 (5th Cir. 2016).

5th Circuit holds Missouri sexual misconduct with a child was a crime of violence. (340) Defendant pled guilty to illegal reentry after deportation. The district court applied a 16-level crime of violence enhancement under §2L1.2(b)(1)(A)(ii) based on defendant’s prior Missouri conviction for sexual misconduct involving a child. The PSR had found that the conviction qualified as an enumerated crime of violence, specifically, “sexual abuse of a minor” under Note 1(B)(iii) to §2L1.2. Defendant argued that the state conviction did not fall within the guidelines’ definition because “[u]nder Missouri law, a person can be convicted of ‘sexual misconduct involving a child’ even if the other person is a police officer masquerading as a child.” The Fifth Circuit rejected the argument, holding that defendant’s Missouri conviction for sexual misconduct with a child was a crime of violence. Courts require “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of the crime.” Defendant did not meet this showing. He did not point to a single case where any court has applied the peace officer affirmative defense provision to a subpart (3) charge, which was his charge of conviction. This made sense because Missouri had a separate “enticement” crime. U.S. v. Lara-Martinez, 836 F.3d 472 (5th Cir. 2016).

10th Circuit says federal drug conspiracy is not categorically a drug trafficking offense. (340) Defendant was convicted of illegally reentering the country after deportation. The district court applied a 12-level increase under §2L1.2(b)(1)(B) and its Application Note 5 for a prior “drug trafficking offense” based on his prior conviction for conspiracy to possess with intent to distribute 50 kilograms or more of marijuana, in violation of 21 U.S.C. §846. Application Note 5 to §2L1.2 states, “Prior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses.” Defendant argued that, under Taylor v. U.S., 495 U.S. 575 (1990), his prior federal drug conspiracy conviction was not categorically a “drug trafficking offense” because conspiracy under §846 does not require proof of an overt act—which, defendant argued, was part of the generic definition of “conspiracy” to which Application Note 5 referred. The Tenth Circuit agreed, noting that Application Note 5 does not define “conspiracy,” and that the generic definition of conspiracy required an overt act. Defendant’s conspiracy conviction under §846 was “a categorical mismatch for the generic definition of ‘conspiracy’ in U.S.S.G. §2L1.2 Application Note 5” and defendant should receive an 8-level enhancement instead of 12. Other circuits have held the opposite, but the panel rejected those decisions. U.S. v. Martinez-Cruz, 836 F.3d 1305 (10th Cir. 2016).

4th Circuit holds Maryland conviction for sexually assaulting estranged wife was crime of violence. (340) Defendant pled guilty to failing to register as a sex offender and illegal reentry. The district court increased the offense level by 16 levels under §2L1.2(b)(1)(A)(ii) based on defendant’s Maryland conviction for third-degree sexual offense as a result of sexually assaulting his then-estranged wife. Md. Code Ann., Crim. Law §3-307(a)(1). The court rejected defendant’s claim that to qualify as a “forcible sex offense” under §2L1.2. the underlying offense must include as an element the intent to gratify sexual urges. Instead, the panel joined other circuits and held that, for purposes of the re-entry guideline, a “sex offense” is an offense involving sexual conduct with another person. A sex offense is “forcible” if it is not consensual. The least culpable version of the crime defined by §3-307(a)(1) (sexual contact while aided or abetted by another) categorically qualified as a “forcible sex offense” and thus was a “crime of violence.” All forms of the offense as charged required nonconsensual sexual contact. U.S. v. Alfaro, 835 F.3d 470 (4th Cir. 2016).

5th Circuit approves increase for brandishing weapon while harboring aliens. (340)(765) Defendant pleaded guilty to harboring aliens for private financial gain. The PSR recommended an offense level of 20 under §2L1.1(b)(5)(B), noting that three aliens had positively identified defendant as the person who brandished a weapon in order to threaten them. On appeal, the Fifth Circuit held that defendant did not rebut the presumption that the PSR was reliable. He alleged that the photographic lineup from which the aliens identified him was unconstitutionally suggestive but did not provide the photographic lineup, so there was no evidence to support his argument. Defendant also contended that the aliens incorrectly identified an innocent person (co-defendant Gutierrez) from a different photographic lineup and that the firearm the aliens claimed to have seen was never found. However, while the charges against Gutierrez were dismissed, there was no indication that the dismissal occurred because the aliens misidentified Gutierrez. U.S. v. Olivares, 833 F.3d 450 (5th Cir. 2016).

7th Circuit reverses where prior aggravated felony ocurred after deportation. (340) Defendant pled guilty to being unlawfully present in the United States after deportation. The district court applied an 8-level adjustment under §2L1.2(b)(1)(C) based on his 2013 conviction for identity theft, a conviction that occurred after he had been deported to Mexico (and after he had returned to the U.S.) However, the increase applies only where “the defendant previously was deported, or unlawfully remained in the United States, after … a conviction for an aggravated felony.” Under Note 1(A)(iii) to §2L1.2, the term “unlawfully remained” refers to a defendant who “remained in the United States following a removal order issued after a conviction, regardless of whether the removal order was in response to the conviction.” Because defendant was actually deported, he did not “unlawfully remain” in the country, but rather re-entered the U.S. before committing the identity theft offense. The Fifth Circuit reversed. U.S. v. Paz-Giron, 833 F.3d 836 (5th Cir. 2016).

Commission deletes residual clause from “crime of violence” in career offender guideline. (330)(340)(520) (540) In Johnson v. U.S., 135 S. Ct. 2551, 2563 (2015) the Supreme Court struck down as unconstitutionally vague the “residual clause” of the Armed Career Criminal Act’s definition of “violent felony” in 18 U.S.C. §924(e). Identical language is in the “residual clause” of the career offender guideline’s definition of “crime of violence” in §4B1.2(a)(2), i.e., “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Accordingly, the Commission deleted the residual clause from §4B1.2(a)(2). The Commission retained the “elements” clause” in subsection (a)(1), i.e., crimes that have “as an element the use, or attempted use, or threatened use of physical force against the person of another.” And it amended the “enumerated offense clause” to include murder, voluntary manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. §5845(a) or explosive material as defined in 18 U.S.C. §841(c). Involuntary manslaughter and burglary of a dwelling were deleted from the list, but departure authority was added. Amendment effective August 1, 2016.

Supreme Court to decide if sex with minor three years younger is an aggravated felony. (340)(504) A defendant with an “aggravated felony” is subject to an enhancement in offense level under §2L1.2(b). An “aggravated felony” is defined in part to include “sexual abuse of a minor.” The Supreme Court granted certiorari to determine if a conviction for “unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator,” in violation of California Penal Code §261.5(c), is an “aggravated felony.” Esquivel-Quintana v. Lynch, __ U.S. __, 137 S. Ct. __ (Oct. 28, 2016) (granting certiorari).

Commission scraps “categorical approach” in illegal reentry cases. (340) Responding to criticism of the “categorical approach,” the Commission amended the illegal entry guideline, §2L1.2, to replace the “crime of violence” model for enhancements for prior convictions, with a “sentence-imposed” model. Under the amendment, increases will depend on the length of the prior sentence, not the type of offense. The amendment provides enhancements in subsections (b)(2) and (b)(3) ranging from 10 levels for a prior sentence of five years or more, to 4 levels for a sentence of less than one year and one month. The terms “crime of violence,” and “drug trafficking offense” are retained only in subsections (b)(2)(E) and (b)(3)(E) for a 2-level enhancement for three or more misdemeanor convictions. Amendment 4, effective Nov. 1, 2016.

Commission amends alien smuggling guideline for unaccompanied minors. (340) The Commission increased the enhancement for unaccompanied minors in §2L1.1(b)(4) from 2 levels to 4 levels, and amended its scope. In addition, the Commission amended the commentary to §2L1.1 to clarify that the term “serious bodily injury” in subsection (b)(7)(B) has the same meaning as in the commentary to §1B1.1, thus ensuring that the 4-level enhancement applies to sexual abuse of aliens. Amendment 4, effective Nov. 1, 2016.

5th Circuit says “crime of violence” in 18 U.S.C. §16(b), and §2L1.2(b)(1)(C), is not vague. (340)(520) Defendant was convicted of being present in the U.S. after deportation. His sentence was increased under §2L1.2(b)(1)(C) based on a prior conviction for an “aggravated felony.” Note 3(A) to §2L1.2 says “aggravated felony” has “the meaning given that term in 8 U.S.C. 1101(a)(43).” That section, in turn, says aggravated felony includes a “crime of violence … as defined in section 16 of Title 18 … for which the term of imprisonment [is] at least one year.” 8 U.S.C. 1101(a)(43)(F). After sentencing, the Supreme Court decided Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015), which held that the residual clause of the Armed Career Criminal Act, 18 U.S.C. §924(e)(2)(B)(ii), was unconstitutionally vague. The Fifth Circuit, en banc, held that the statutory definition of crime of violence in 18 U.S.C. §16(b) was not unconstitutionally vague. Although the “residual clause” language in §924(e) is the same as §16(b), the indeterminacy factors identified by the Supreme Court in Johnson are not the same for 18 U.S.C. §16(B). The inquiry under 18 U.S.C. §16(b) is narrower. Moreover, 18 U.S.C. §16(b) was plainly not vague as applied to defendant. Judge Jolly, joined by Judges Stewart, Dennis and Graves, dissented. U.S. v. Gonzalez-Longoria, __ F.3d __ (5th Cir. Aug. 5, 2016) No. 15-40041 (en banc).

5th Circuit rules Florida attempted second-degree murder is not crime of violence. (340)(520)(540) Defendant pled guilty to illegal reentry, and received a 16-level crime of violence enhancement based on his Florida conviction for attempted second-degree murder. He claimed that the conviction did not qualify as an enumerated offense under §2L1.2, note 1(B)(iii), because generic, contemporary attempted murder includes a mens rea of specific intent to kill. The Fifth Circuit agreed, and reversed. Defendant showed a “realistic probability” that Florida’s attempted-second-degree murder law “punish[es] conduct outside of the offense’s ordinary meaning” by pointing to “other cases in which the state courts in fact did apply the statute” to conduct not encompassed by the generic meaning. The government did not prove that the error was not harmless, i.e. that the court would have imposed the same sentence regardless of the error. U.S. v. Hernandez-Montes, __ F.3d __ (5th Cir. July 25, 2016) No. 15-40544.

8th Circuit rejects argument that below-guidelines sentence was too high. (340)(742)(855) Defendant pled guilty to illegally reentering the U.S. after deportation. His guideline range was 70-87 months, and the court sentenced him to 48 months. On appeal, defendant argued that his sentence was procedurally unreasonable because the court failed to adequately explain why his requested sentence of time served was not sufficient. The Eighth Circuit found no error. The sentencing judge listened to each of defendant’s arguments, considered the supporting evidence, responded appropriately, and gave a reasoned basis for its below-guidelines sentence. The court acknowledged the financial and human costs of prison and defendant’s valid desire to get back to his family, but explained that defendant’s history of felony domestic assault made deportation without incarceration inappropriate. The court said defendant’s crime required “a sentence of more than time served to reflect the severity of the offense,” to account for his prior 18 months in prison, and to deter him from illegally returning to the United States again. No further explanation was required. U.S. v. Torres-Ojeda, __ F.3d __ (8th Cir. July 22, 2016) No. 15-3441.

9th Circuit, en banc, to decide if possession of crack is a drug-trafficking offense. (340), A defendant convicted of illegal reentry after deportation is subject to a 16-level increase under §2L1.2(b)(1)(A) if he has a prior conviction for a “drug trafficking offense.” The Ninth Circuit sua sponte granted en banc review to decide whether a conviction for possession of crack cocaine under California Health & Safety Code §11350(a) is a drug trafficking offense within the meaning of §2L1.2(b)(1)(A). U.S. v. Martinez-Lopez, __ F.3d __ (9th Cir. Sept. 26, 2016) No. 14-50014 (granting en banc review).

Supreme Court to decide if definition of “aggravated felony” is unconstitutionally vague. (120)(340) An immigration judge determined that an alien was deportable and ineligible for cancellation of removal because his two state convictions for first-degree burglary each qualified as an “aggravated felony” under 8 U.S.C. §1101. The Ninth Circuit granted review on the ground that the relevant portion of the definition of “aggravated felony” in §1101(a)(43)(F) is unconstitutionally vague. On Sept. 29, 2016, the Supreme Court granted certiorari to decide whether, in light of Johnson v. U.S., 135 S.Ct. 2551 (2015), 18 U.S.C. §16(b), as incorporated into the Immigration and Nationality Act’s provisions governing an alien’s deportation, is unconstitutionally vague. Lynch v. Dimaya, __ U.S. __, 137 S.Ct. __ (Sept. 29, 2016) (granting certiorari).

5th Circuit rules Georgia child molestation was enumerated offense of sexual abuse of a minor. (340) (520) Defendant pled guilty to being an alien found in the U.S. after deportation, and received a 16-level crime of violence increase under §2L1.2(b)(1)(A)(ii) based on his 2005 Georgia felony conviction for child molestation. Ga. Code Ann. §16-6-4(a). On appeal, he argued that the district court erred in finding that the conviction qualified as an enumerated offense under §2L1.2(b)(1)(A)(ii), because the Georgia statute was broader than the generic meaning of “sexual abuse of a minor.” The Fifth Circuit disagreed, relying on U.S. v. Olalde–Hernandez, 630 F.3d 372 (5th Cir. 2011), which rejected the same argument. The panel also rejected his claim that Georgia courts have recently extended the reach of §16-6-4(a) to conduct outside the generic meaning of sexual abuse of a minor. U.S. v. Puga-Yanez, __ F.3d __ (5th Cir. July 11, 2016) No. 15-410008.

5th Circuit holds Florida stolen property conviction was not an aggravated felony. (340) Defendant pled guilty to illegal reentry. The district court found that his 2002 Florida conviction for dealing in stolen property, Fla. Stat. §812.019, was an aggravated felony under §2L1.2(b)(1)(C), and applied an eight-level enhancement. The Fifth Circuit reversed, noting that under 8 U.S.C. §1101(a)(43)(G), an “aggravated felony” is “a theft offense … for which the term of imprisonment [is] at least one year.” The “generic, contemporary meaning” of a “theft offense” requires “an intent to deprive the owner of … possession of the stolen goods.” The Florida statute was broader, allowing a conviction if the defendant should have known that property was stolen. Because Florida applied this statute to conduct outside the generic definition of theft, the district court erred in counting the conviction as an aggravated felony. U.S. v. Sanchez-Rodriguez, __ F.3d __ (5th Cir. July 8, 2016) No. 15-41056.

4th Circuit says alternate means of satisfying mens rea did not make statute “divisible.” (340)(520) The district court increased defendant’s sentence by 16 levels under §2L1.2(b)(1)(A), finding that his aggravated assault conviction under Texas Penal Code §22.02(a) was a crime of violence. The court found that §22.02(a) was divisible, and therefore used a modified categorical approach. It then concluded that the elements of §22.02(a) matched the generic offense of aggravated assault. The Fourth Circuit reversed, holding that the statute’s inclusion of a reckless state of mind made it broader than generic aggravated assault. Moreover, the alternative means of satisfying the mens rea element did not make the statute divisible. Any statutory phrase that refers to multiple, alternative means of commission is still indivisible if the jurors need not agree on which method of committing the offense the defendant used. In Texas, jury unanimity as to mens rea was not required for aggravated assault under §22.02(a)(1), (2). Accordingly, §22.02(a) was broader than generic “aggravated assault,” was not divisible, and could not support the 16-level enhancement. U.S. v. Barcenas-Yanez, __ F.3d __ (4th Cir. June 21, 2016) No. 15-4363.

9th Circuit says Florida manslaughter is not a “crime of violence.” (340)(504) Under §2L1.2(b)(1)(A)(ii), a court must increase the offense level of a defendant convicted of illegal reentry after deportation by 16 levels if defendant was deported after a “crime of violence.” “Crime of violence” is defined in part to include manslaughter. Defendant was deported after being found guilty of manslaughter under Florida law. Because manslaughter under Florida Statute §782.07 does not correspond to the elements of the generically defined crime of manslaughter, the Ninth Circuit held that it was not a “crime of violence” under §2L1.2(b)(1)(A)(ii). U.S. v. Mendoza-Padilla, __ F.3d __ (9th Cir. Aug. 16, 2016) No. 15-10051.

9th Circuit reverses “crime of violence” increase in firearms guideline as vague. (330)(340)(504)(520) Under §2K2.1(a)(2), the sentence for certain firearms offenses is enhanced if defendant had a prior conviction for a “crime of violence.” “Crime of violence” is defined in §4B1.2 to include an offense that “by its nature, presents a serious potential risk of physical injury to another.” In Johnson v. U.S., 135 S.Ct. 2551 (2015), the Supreme Court found identical language in the “residual clause” of 18 U.S.C. §924(e) to be unconstitutionally vague. On appeal, the government conceded that under Johnson, the provision of §2K2.1(a)(2) that incorporates the definition of “crime of violence” in §4B1.2 is likewise vague, and the Ninth Circuit accepted this concession. U.S. v. Torres, __ F.3d __ (9th Cir. July 14, 2016) No. 14-10210.

Commission deletes residual clause from “crime of violence” in career offender guideline. (330)(340) (520)(540) In Johnson v. U.S., 135 S.Ct. 2551, 2563 (2015) the Supreme Court struck down as unconstitutionally vague the “residual clause” of the Armed Career Criminal Act’s definition of “violent felony” in 18 U.S.C. §924(e). Identical language is in the “residual clause” of the career offender guideline’s definition of “crime of violence” in §4B1.2(a)(2), i.e., “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Accordingly, the Commission deleted the residual clause from §4B1.2(a)(2). The Commission retained the “elements” clause” in subsection (a)(1), i.e., crimes that have “as an element the use, or attempted use, or threatened use of physical force against the person of another.” And it amended the “enumerated offense clause” to include murder, voluntary manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. §5845(a) or explosive material as defined in 18 U.S.C. §841(c). Involuntary manslaughter and burglary of a dwelling were deleted from the list, but departure authority was added. Amendment effective August 1, 2016.

5th Circuit says using communication device to facilitate drug trafficking is serious drug offense. (340) Defendant’s sentence for illegal re-entry after deportation was increased by 16 levels under §2L1.2(b)(1)(A)(i) based on his prior drug trafficking conviction for aiding and abetting the use of a communication facility to facilitate a felony drug offense. 21 U.S.C. §843(b) Defendant argued that §843(b) proscribed conduct that fell outside the generic definition of a drug trafficking offense because the facilitation offense requires only proof by a preponderance of the evidence. The Fifth Circuit held that the facilitation statute was divisible, allowing application of the modified categorical approach. Moreover, the Supreme Court requires all elements of a crime to be proven beyond a reasonable doubt, and the Fifth Circuit pattern jury charge for §843(b), requires the government to prove beyond a reasonable doubt that the defendant used the communication facility with the intent to commit the specified drug offense. U.S. v. Martinez-Vidana, __ F.3d __ (5th Cir. June 9, 2016) No. 15-40470.

Supreme Court says whether a prior offense is “generic” depends on elements, not facts. (340)(520)(540) The Armed Career Criminal Act, 18 U.S.C. §924(e), imposes a 15-year mandatory minimum on defendants who have three prior convictions for, among other things, “burglary.” To determine whether a state burglary qualifies as an ACCA predicate, a court must compare the state statute to the “generic” offense. For burglary, the “generic” offense requires proof of an unlawful entry into a building. The Iowa burglary statute, Iowa Code §702.12, requires unlawful entry into “any building, structure, [or] land, water, or air vehicle.” Under Iowa law, the list of places in the burglary statute does not set out alternative elements, but rather alternative means of fulfilling a single element. The Supreme Court held that when a statute defines only one offense, the elements of that offense determine whether it qualifies under the “categorical approach” as one of the “generic” offenses listed as a predicate offense in the ACCA. If the statute lists different factual means of committing an element, a court may not look at the factual circumstances to determine if the defendant committed the “generic” offense. Mathis v. U.S., __ U.S. __, 136 S. Ct. __ (June 23, 2016).

9th Circuit finds Oregon burglary is not a “violent felony” under the ACCA. (340)(520)(540) Defendant was sentenced to 15 years under the Armed Career Criminal Act, 18 U.S.C. §924(e), in part because he had a prior conviction for first-degree burglary under Oregon Revised Statutes §164.225. The Ninth Circuit held that the elements of the Oregon burglary statute are not a categorical match to “generic” burglary because the Oregon statute defines “building” more broadly than does generic burglary. The court also held that the Oregon statute is indivisible and therefore the modified categorical approach did not apply. U.S. v. Cisneros, __ F.3d __ (9th Cir. June 22, 2016) No. 13-30066.

6th Circuit relies on Johnson to hold that guidelines’ residual clause is unconstitutionally vague. (135)(330) (340)(520) Defendant was convicted of firearms charges, and received an increase under §2K2.1(a)(1) for two prior convictions for crimes of violence. One conviction was an Ohio third-degree burglary, which the sentencing court had found was a crime of violence under the residual clause of guideline §4B1.2(a). However, in Johnson v. U.S., __ U.S. __, 135 S. Ct. 2551 (2015), the Supreme Court invalidated a textually identical residual clause in the Armed Career Criminal Act (ACCA), 18 U.S.C. §924(e). The Sixth Circuit held that Johnson’s reasoning applied equally to the guidelines, and that the residual clause in §4B1.2(a) was also unconstitutionally vague. Prior decisions shielding the guidelines from vagueness challenges were inconsistent with Johnson. Because the Ohio third-degree burglary was no longer a qualifying conviction, the case was remanded for resentencing. U.S. v. Pawlak, __ F.3d __ (6th Cir. May 13, 2016) No. 15-3566.

Supreme Court rules state aggravated felony need not have interstate commerce nexus. (340)(504)(520) An alien convicted of an “aggravated felony” is subject to deportation and may suffer enhanced penalties if convicted of an immigration offense. The term “aggravated felony” includes crimes described in 18 U.S.C §844(i), which makes it a crime to commit certain arson offenses. Defendant had a prior state conviction for third-degree arson. The Supreme Court, per Justice Kagan, held that a state offense counts as an “aggravated felony” when it has every element of a listed federal crime except one requiring a connection to interstate or foreign commerce. Justice Sotomayor, joined by Justices Thomas and Breyer, dissented. Torres v. Lynch, __ U.S. __, 136 S. Ct. 1619 (2016).

5th Circuit finds Georgia aggravated assault was crime of violence. (340)(520) Defendant pled guilty to illegal reentry after deportation. The district court applied a 16-level crime of violence increase under §2L1.2(b)(1)(A)(ii) based on his prior aggravated assault conviction under Georgia Code §16-5-21(a)(2). The Fifth Circuit affirmed. The Georgia indictment charged defendant with aggravated assault, and alleged that he repeatedly rammed his van into another person’s vehicle. This description tracked the aggravated assault language of §16-5-21(a)(2). A number of unpublished decisions have held that the Georgia offense of aggravated assault was a crime of violence under §2L1.2, and the panel was persuaded by them. The panel distinguished U.S. v. Hernandez–Rodriguez, 788 F.3d 193 (5th Cir. 2015), which held that Louisiana aggravated battery was not a crime of violence, finding no evidence that the Georgia statute was interpreted and applied as broadly as the Louisiana statute. U.S. v. Torres-Jaime, __ F.3d __ (5th Cir. Apr. 21, 2016) No. 15-40208.

9th Circuit finds California sale of drugs was aggravated felony under modified approach. (340)(504) Defendant pleaded guilty to illegal reentry after deportation, in violation of 8 U.S.C. §1326. He contended that he could not be convicted of that offense because he was not properly deported. Defendant argued that his deportation was invalid because he had not been deported after committing an “aggravated felony.” Defendant had been deported after being convicted of possession for sale of a controlled substance, in violation of California Health & Safety Code §11378. The Ninth Circuit held that possession for sale of a controlled substance in California is not categorically an aggravated felony but that defendant’s prior conviction qualified as an aggravated felony under the modified categorical approach. U.S. v. Vega-Ortiz, __ F.3d __ (9th Cir. May 6, 2016) No. 14-50100

5th Circuit finds caltrop road spikes are dangerous weapons. (160)(340) Defendant pled guilty to transporting undocumented aliens for purposes of financial gain. During the offense, while Border Patrol agents were pursuing defendant’s truck, someone threw out a bucket containing caltrops, which are metal spikes that traffickers often deploy during pursuits to puncture the tires of police cars. The caltrops disabled two law enforcement vehicles by puncturing their tires, but neither the agents nor other motorists were injured. The Fifth Circuit upheld a four-level increase under §2L1.1(b)(5)(B) for use of a dangerous weapon, i.e., the caltrops. The fact that defendant might have been using the caltrops “defensively,” and that no one was hurt, did not matter. The definition of dangerous weapon does not require that use of the instrument actually inflict death or serious bodily injury; it only needs to be capable of inflicting such death or serious bodily injury. Common sense suggests that causing a blow-out at high speeds could easily lead to death or serious bodily injury. U.S. v. Olarte-Rojas, __ F.3d __ (5th Cir. Apr. 29, 2016) No. 14-41408.

5th Circuit allows court to correct miscalculation of offense level under Rule 35(a). (115)(340) Defendant pled guilty to smuggling aliens for financial gain, and was initially sentenced to 54 months. The following day, the district court reconvened the sentencing hearing under Rule 35(a), F. R. Crim. P. It explained that it had miscalculated defendant’s offense level by wrongly determining the adjustment under §2L1.1(b)(5)(B). The adjustment should have resulted in an offense level of 20, but the four-level adjustment the court applied yielded only an offense level of 19. The court ruled that it should have assessed a five-level adjustment, resulting in a proper offense level of 25 and a proper guideline range of 57-71 months. The court then sentenced defendant to 57 months. Rule 35(a) permits a court to correct a sentence that resulted from “arithmetical, technical or other clear error.” The Fifth Circuit held that the district court’s initial miscalculation of defendant’s guideline range was the type of clear error that it could correct sua sponte under Rule 35(a). This was not a case where the court reconsidered an application or interpretation of the guidelines. U.S. v. Olarte-Rojas, __ F.3d __ (5th Cir. Apr. 29, 2016) No. 14-41408.

5th Circuit holds Florida kidnapping was not crime of violence because it was not generic kidnapping. (340) Defendant was convicted of being in the U.S. after deportation. The district court added 16-levels under §2L1.2(b)(2)(A)(ii) based on its finding that his prior Florida conviction for attempted kidnapping constituted a crime of violence. Defendant challenged this finding on appeal, and the Fifth Circuit reversed. The Florida conviction did not constitute the enumerated offense of kidnapping because the generic, contemporary meaning of kidnapping includes the following elements: (1) knowing confinement; (2) substantial interference with the victim’s liberty; (3) use of force, threat, or fraud; and (4) a substantial risk of bodily injury. A kidnapping statute that has only the first three elements of the generic statute qualifies as an enumerated offense, but the Florida statute did not have the element of substantial interference with the victim’s liberty, and did not require the confinement or abduction of the victim to be achieved by the use of force, threats, or fraud. U.S. v. Martinez-Romero, __ F.3d __ (5th Cir. Apr. 5, 2016) No. 15-40246.

8th Circuit holds that Minnesota felony domestic assault was violent felony. (340)(540) Defendant pled guilty to being a felon in possession of a firearm. He was sentenced under the Armed Career Criminal Act, 18 U.S.C. §924(e), based in part on his prior conviction for felony domestic assault under Minn.Stat. §609.2242, subd. 1(1). The district court found that the conviction was a violent felony under the ACCA’s force clause based on U.S. v. Salido–Rosas, 662 F.3d 1254 (8th Cir. 2011). Salido–Rosas held that a conviction for knowingly placing “another person in fear of imminent bodily harm” qualified as a crime of violence under the force clause of guideline §2L1.2(b)(1)(E). Here, defendant was convicted of committing an “act with intent to cause fear in another of immediate bodily harm or death.” Minn.Stat. §609.2242, subd. 1(1). The elements of the two offenses were similar enough that Salido–Rosas was not meaningfully distinguishable. The Eighth Circuit therefore affirmed the district court’s conclusion that defendant’s conviction qualified as a violent felony under the force clause. U.S. v. Schaffer, __ F.3d __ (8th Cir. Apr. 12, 2016) No. 15-2571.

Supreme Court makes retroactive Johnson’s holding that ACCA “residual clause” is unconstitutionally vague. (120)(340)(520)(540)(880) The Armed Career Criminal Act, 18 U.S.C. §924(e) provides enhanced penalties if the defendant has three or more prior convictions for “a serious drug offense,” or a “violent felony.” In defining “violent felony,” the statute includes a residual clause—”or otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B). In Johnson v. U.S., 135 S. Ct. 2551 (2015), the Supreme Court held that this “residual clause” was unconstitutionally vague. In the present case, a prisoner whose conviction became final before the decision in Johnson was handed down, filed a 28 U.S.C. §2255 motion arguing that Johnson should be applied retroactively. In a 7-1 opinion written by Justice Kennedy, the Supreme Court agreed, holding that Johnson announced a substantive rule that applies retroactively to cases on collateral review. Justice Thomas dissented. Welch v. U.S., 136 S. Ct. 1257 (April 18, 2016).

5th Circuit says court did not plainly err in classifying Arkansas domestic battery conviction as aggravated felony. (340) Defendant pled guilty to illegally reentry following deportation. The district court applied an eight-level aggravated felony enhancement under §2L1.2(b)(1)(C) based on his prior Arkansas conviction for domestic battery. Defendant argued on appeal that the Arkansas conviction did not qualify as a violent felony because it did not result in imprisonment for at least one year, thus falling outside 8 U.S.C. §1101(a)(43)(F)’s definition of an aggravated felony. However, at sentencing, he had argued that the conviction was not an aggravated felony on a different ground. Assuming, without deciding, that the district court erred in classifying defendant’s Arkansas conviction as an aggravated felony, the Fifth Circuit found that the error was not “clear or obvious,” and thus, did not meet the plain error test. The “confused history” of suspended imposition and suspended execution of sentences in Arkansas made classifying defendant’s conviction under existing case law “anything but a clear or obvious task.” U.S. v. Narez-Garcia, __ F.3d __ (5th Cir. Mar. 31, 2016) No. 15-50076.

9th Circuit says decision to apply modified categorical approach should be held for Supreme Court. (340)(504) Defendant, convicted of attempted illegal reentry in violation of 8 U.S.C. §1326, had a prior conviction for violating California Health & Safety Code §11352(a), which punishes any person who transports, imports, or sells a controlled substance. After noting that §11532(a) does not categorically define a “drug trafficking offense” for purposes of enhancing defendant’s sentence under the guidelines, the Ninth Circuit decided to hold its decision pending the Supreme Court’s decision in Mathis v. U.S., No. 15-6092. In Mathis, the Court has granted certiorari to decide whether the modified categorical approach applies when a state statute sets out alternative forms of committing an offense. U.S. v. Rosales-Aguilar, __ F.3d __ (9th Cir. April 12, 2016) No. 14-50315.

9th Circuit upholds finding that concealing alien behind dashboard caused risk of bodily injury. (340) Defendant was convicted of bringing an alien into the U.S., in violation of 8 U.S.C. §1324(e), after he attempted to enter the U.S. with an illegal alien hidden in a compartment behind the dashboard of the car he was driving. The alien was strapped into the compartment with a heavy-duty cargo strap. At sentencing, the district court enhanced defendant’s sentence by six levels under §2L1.1(b)(6) because defendant “recklessly created a substantial risk of death or serious bodily injury to another person.” The Ninth Circuit upheld the enhancement, finding that the district court was not clearly erroneous in concluding that the space behind the dashboard was precarious and dangerous. U.S. v. Bernardo, __ F.3d __ (9th Cir. April 13, 2016) No. 15-50289.

10th Circuit holds that possession with intent to distribute 50 grams or more of meth qualified as felony drug trafficking offense. (340) Defendant pled guilty to illegally reentering the U.S. after deportation. The PSR recommended a 16-level enhancement under §2L1.2(b)(1)(A) for a prior drug trafficking offense based on defendant’s conviction of possession with intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §841(a)(1). The district court, however, only applied an eight-level aggravated felony enhancement under §2L1.2(b)(1)(C). The Tenth Circuit held that the district court erred in refusing to apply the 16-level enhancement under §2L1.2(b)(1)(A)(1). The elements of defendant’s prior conviction were congruent with the elements of the generic offense of possession with intent to distribute enumerated in the definition of “drug trafficking offense” set forth in the commentary to U.S.S.G. §2L1.2. Defendant’s prior violation of §841(a)(1) categorically constituted a “drug trafficking offense” for purposes of §2L1.2(b)(1)(A) and, as a result, there was no need to apply the modified categorical approach. U.S. v. Dominguez-Rodriguez, __ F.3d __ (10th Cir. Mar. 31, 2016) No. 15-2100.

5th Circuit says prior §111(b) conviction required proof of physical force against another. (340)(520) Defendant received a 16-level crime of violence enhancement based on his prior conviction for assaulting a federal officer and inflicting bodily injury, in violation of 18 U.S.C. §111(a)(1) and (b). The Fifth Circuit held that the §111 offense was a crime of violence, finding that defendant’s conviction necessarily required proof that he used, attempted to use, or threatened to use physical force against the person of another. Section 111 is a divisible offense. Using the modified categorical approach, the panel found it “a simple matter to deduce” from the Shepard documents that defendant was convicted under §111(b), the more serious felony provision of the statute. Defendant admitted in his written plea that he “forcefully” “struck” and “bit” a corrections officer and that these actions caused “bodily injury” to the officer. The force required to violate §111(b) necessarily required a showing of the type of “violent force … capable of causing physical pain or injury to another person,” and thus was a crime of violence under §2L1.2’s use of force provision. U.S. v. Hernandez-Hernandez, __ F.3d __ (5th Cir. Mar. 17, 2016) No. 15-40480.

9th Circuit reaffirms that part of definition of “crime of violence” is vague. (340)(504) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. §1326. The guideline for that offense, §2L1.2(b)(1)(C), imposes an eight-level enhancement if defendant was convicted of an “aggravated felony.” The guideline defines an aggravated felony in part as a “crime of violence,” which in turn takes its definition from 18 U.S.C. §16. In Johnson v. U.S., 135 S.Ct. 2551 (2015), the Supreme Court held that language similar to that in §16(b) was void for vagueness, and in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), the court held that Johnson applies to §16(b), so that the “residual clause” of §16(b) is also void for vagueness. Accordingly, defendant’s prior California burglary conviction was not a “crime of violence.” U.S. v. Hernandez-Lara, __ F.3d __ (9th Cir. Mar. 29, 2016) No. 13-10637.

5th Circuit holds Delaware aggravated menacing was crime of violence. (340)(520) Defendant pled guilty to illegal reentry after deportation. The district court applied a 12-level enhancement under §2L1.2(b)(1)(A)(ii) based on defendant’s 2004 Delaware conviction for aggravated menacing. The Fifth Circuit affirmed, finding that aggravated menacing had as element the threatened use of physical force against the person of another, and was therefore a crime of violence. Under Title 11, §602(b) of the Delaware Code, “[a] person is guilty of aggravated menacing when by displaying what appears to be a deadly weapon that person intentionally places another person in fear of imminent physical injury.” The panel rejected defendant’s argument that the offense did not qualify as a crime of violence because no actual threat need be proved—”intentionally plac[ing] another in fear of imminent physical injury” constitutes a threat. U.S. v. Ovalle-Chun, __ F.3d __ (5th Cir. Mar. 7, 2016) No. 15-40970.

2nd Circuit says court improperly relied on prosecutor to find that offense was aggravated felony. (340) Defendant pled guilty to illegal reentry. The district court applied an eight-level increase under §2L1.2(b)(1)(C) based on its finding that his Connecticut conviction for second degree attempted assault was an aggravated felony. Defendant challenged this finding on appeal. The assault statute, Conn. Gen.Stat. §53a–60, was divisible, defining several distinct offenses, most of which would constitute “crimes of violence” within the meaning of 18 U.S.C. §16(a), but at least one of which would not. Specifically, §53a–60(a)(3), which criminalized reckless conduct, did not have as an element the use, attempted use, or threatened use of force. The Second Circuit reversed the aggravated felony enhancement. The district court relied on the prosecutor’s account of the facts during the plea proceeding. But the defendant never assented to, or adopted, those allegations, so they could not be relied on to establish, under the modified categorical approach, which part of a divisible statute that defendant plead guilty to. U.S. v. Moreno, __ F.3d __ (2d Cir. Feb. 12, 2016) No. 14-4700-cr.

5th Circuit relies on docket sheet and Disposition of Arrest to establish prior conviction. (340)(770) The district court increased the sentence by 12 levels under §2L1.2(b)(1)(A)(ii), based on defendant’s 2003 California conviction for assault with a deadly weapon. Defendant challenged the court’s reliance on the “Disposition of Arrest and Court Action” and a 20-page docket sheet, both of which indicated that, in 2003, an individual with defendant’s name pleaded nolo contendere to violating Cal. Penal Code §245(a)(1) (assault with a deadly weapon). The Fifth Circuit held that the docket sheet and a Disposition of Arrest and Court Action bore “sufficient indicia of reliability” to support the court’s finding that defendant had previously been convicted of a crime of violence. The panel rejected defendant’s claim that records to prove a prior conviction must be obtained from a state court and prepared by a clerk. The documents here were sufficiently reliable. The docket report contained a significant amount of detail regarding the proceedings in the 2003 case, and the two documents strongly corroborated one another. Moreover, defendant did not present any information challenging the veracity of the information contained in these documents. U.S. v. Ortega-Calderon, __ F.3d __ (5th Cir. Feb. 26, 2016) No. 14-40889.

5th Circuit strikes 18 U.S.C. §16’s definition of crime of violence as unconstitutionally vague. (340)(520) In Johnson v. U.S., __ U.S. __, 135 S. Ct. 2551 (2015), the Supreme Court held that the “residual clause” of the Armed Career Criminal Act’s definition of “violent felony” was unconstitutionally vague. The residual clause defines a “violent felony” as any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. §924(e)(2)(B). The statutory definition of “crime of violence” in 18 U.S.C. §16 is similarly defined as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” The Seventh and Ninth Circuits have held that this language was sufficiently similar to the ACCA’s language to suffer the same constitutional fate. The Fifth Circuit agreed, and held that 18 U.S.C. §16’s definition of crime of violence was unconstitutionally vague. U.S. v. Gonzalez-Longoria, __ F.3d __ (5th Cir. Feb. 10, 2016) No. 15-40041.

5th Circuit holds possible misclassification of aggravated felony was not plain error. (340) Defendant pled guilty to illegal reentry after deportation. His criminal history included a 2005 Texas conviction for felony sexual assault for which he was sentenced to seven years of deferred adjudication probation. The district court found that the Texas conviction qualified as an aggravated felony, which increased the statutory maximum for the reentry offense to 20 years. See 8 U.S.C. §1326(b)(2). Defendant argued for the first time on appeal that because he was sentenced to seven years of deferred adjudication probation for the Texas offense, he was not imprisoned for at least one year, and therefore, the offense did not qualify as an aggravated felony. The Fifth Circuit found no plain error, since defendant could not show that the error affected his substantial rights. If the district court erred, it was in concluding that the statutory maximum for the offense was 20 years when it should have been ten. However, defendant’s sentence was only 41 months of imprisonment. Although defendant argued that the 20-year maximum “could well have influenced the district court’s selection of sentence,” defendant was unable to point to any evidence suggesting this was in fact the case. U.S. v. Castaneda-Lozoya, __ F.3d __ (5th Cir. Feb. 4, 2016) No. 15-40022.

5th Circuit upholds crime of violence increase despite pardoned arson conviction. (340) Defendant pled guilty to being found in the United States following deportation. The district court applied a 12-level crime of violence enhancement under §2L1.2(b)(1)(A)(ii) based on his 1994 arson conviction for a fire in his home that killed his wife. Defendant argued that the enhancement was improper because the arson conviction was pardoned. The district court disagreed because the pardon was not granted for reasons of innocence or other constitutional or legal error, but simply to help defendant to gain legal status in the United States. The Fifth Circuit upheld the crime of violence enhancement. Pardoned offenses may be used for sentencing enhancement purposes. The pardon documents did not call into question defendant’s guilt or expunge his conviction. U.S. v. Munoz-Gonzalez, __ F.3d __ (5th Cir. Feb. 3, 2016) No. 15-40386.

Supreme Court to decide if elements or means determines that offense is “violent felony.” (120)(340)(520) (540) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant convicted of being a felon in possession of a firearm who has three prior “violent felonies” is subject to a 15-year minimum mandatory sentence. The district court imposed the 15-year sentence, and the court of appeals affirmed. The Supreme Court granted certiorari to determine whether a predicate prior conviction under the ACCA must qualify under the elements of the offense, without extending the modified categorical approach to separate statutory definitional provisions that merely establish the means by which referenced elements may be satisfied rather than stating alternative elements or versions of the offense. Mathis v. U.S., __ U.S. __, 136 S. Ct. __ (Jan. 19, 2016) (granting certiorari).

Supreme Court to decide retroactivity of Johnson. (120)(340)(520)(540) Defendant was sentenced as an Armed Career Criminal under 18 U.S.C. § 924(e)(2), after the court found that his prior Florida robbery conviction was a “violent felony” under the ACCA’s “residual clause.” After his sentence was affirmed on appeal, he filed a 28 U.S.C. § 2255 motion arguing that his ACCA sentence was improper. His motion was denied, and the Eleventh Circuit denied a certificate of appealability. Thereafter, however, the Supreme Court, in Johnson v. U.S., 135 S. Ct. 2551 (2015), held that the ACCA’s residual clause is void for vagueness. On January 8, 2016, the Supreme Court granted defendant’s certiorari petition to decide (1) whether the district court erred when it denied relief on the § 2255 motion to vacate; and (2) whether Johnson announced a new substantive rule of constitutional law that applies retroactively to cases that are on collateral review. Welch v. U.S., __ U.S. __, 136 S.Ct. __ (Jan. 8, 2016) (granting certiorari).

8th Circuit treats Iowa aggravated misdemeanor as felony. (340) Defendant pled guilty to illegally reentering the U.S. after deportation. The district court found that his 2003 Iowa conviction for domestic assault was a felony, increasing the statutory maximum for his illegal reentry offense to ten years in prison, see 8 U.S.C. § 1326(b)(1). Defendant argued that his 2003 conviction was an “aggravated misdemeanor” under Iowa law, and should not be deemed a felony under § 1326(b)(1). The Eighth Circuit disagreed. A felony, as that term is used in § 1326(b)(1), means “any state or federal offense punishable by a maximum term of more than one year in prison.” U.S. v. Figueroa–Alvarez, 795 F.3d 892 (8th Cir. 2015). Under Iowa law, the maximum penalty for an aggravated misdemeanor such as enhanced domestic abuse assault is “imprisonment not to exceed two years.” Iowa Code § 903.1(2). Thus, the district court correctly ruled that the 2003 conviction was a felony conviction under § 1326(b)(1), and therefore the statutory maximum sentence for defendant’s illegal reentry offense was ten years in prison. U.S. v. Abrica-Sanchez, __ F.3d __ (8th Cir. Dec. 9, 2015) No. 15-1607.

8th Circuit approves variance for criminal history, and lack of employment. (340)(741) Defendant pled guilty to illegally reentering the U.S. after deportation. His guideline range was 15-21 months, but the court varied upward to 48 months based on defendant’s criminal history (23 prior convictions), risk of recidivism, lack of employment history, and lack of contact with and support of his children. The Eighth Circuit affirmed the upward variance. The district court appropriately considered prior convictions that received no criminal history points, finding that the extensive criminal history was “evidence of obvious incorrigibility” and “leniency has not been effective.” The court also properly took into account factors such as work history and failure to support his children that bore on “the history and characteristics of the defendant.” 18 U.S.C. § 3553(a)(1) U.S. v. Abrica-Sanchez, __ F.3d __ (8th Cir. Dec. 9, 2015) No. 15-1607.

10th Circuit holds California second-degree robbery was crime of violence. (340) Defendant was convicted of illegally reentering the U.S. after deportation. He received an enhanced sentence under § 2L1.2 based on the court’s finding that his previous California second-degree robbery conviction was a crime of violence. The Tenth Circuit affirmed, holding that defendant’s robbery conviction under California Penal Code § 211 qualified as a crime of violence under § 2L1.2. Robbery is defined in § 211 as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” “Fear” for purposes of § 211 can be accomplished through threat of injury either to a person or to property. The threat of injury to a person in the course of unlawfully depriving another of property satisfied the generic definition of robbery. Moreover, a violation of § 211 based on a threat to property corresponded to generic extortion. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Because either method of violating § 211 corresponded to the generic form of an enumerated crime of violence, the offense qualified as a crime of violence. U.S. v. Castillo, __ F.3d __ (10th Cir. Dec. 15, 2015) No. 14-4129.

7th Circuit holds crime of violence in 18 U.S.C. § 16(b) is unconstitutionally vague. (135)(340) Under 8 U.S.C. § 1326(b)(2), the maximum sentence for reentry after deportation is raised to 20 years if the defendant had been convicted of an “aggravated felony” prior to removal. The definition of “aggravated felony” is based on the definition of “crime of violence” in 18 U.S.C. § 16(b), which includes “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” The Seventh Circuit found this language materially indistinguishable from the “residual clause” of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), which was held unconstitutionally vague by the Supreme Court in Johnson v. U.S., __U.S. __, 135 S.Ct. 2551 (2015). Accordingly, it reversed the district court’s finding that defendant’s Wisconsin conviction for fleeing an officer was a crime of violence under § 16(b). U.S. v. Vivas-Ceja, __ F.3d __ (7th Cir. Dec. 22, 2015) No. 15-1770.

1st Circuit upholds treating Maine burglaries as crimes of violence. (330)(340) Defendant pled guilty to illegal possession of a firearms. The district court treated his two prior Maine burglary convictions as crimes of violence, thus raising his offense level to 26 under §2K2.1(a)(1). The Maine burglary statute described at least two alternative offenses, only one of which included as an element the entry or unauthorized presence in a dwelling. The prosecution provided no Shepard documents, but the district court relied on the PSR to find that the prior burglaries were crimes of violence. Defendant argued for the first time on appeal that, without proper Shepard documents, this was error. The First Circuit found no plain error. The PSR expressly stated that defendant was convicted of entering a dwelling, and named the occupant in each instance. Defendant did not object to this description, and thus may have waived the issue. The district court was given no reason not to rely on the express descriptions of the burglary convictions as instances in which defendant was convicted of entering a dwelling. U.S. v. MacArthur, 805 F.3d 385 (1st Cir. 2015).

9th Circuit holds that New Jersey aggravated assault is not “crime of violence.” (340)(504) Defendant pleaded guilty to illegal reentry after deportation, in violation of 8 U.S.C. § 1326. The guideline for that offense, § 2L1.2(b)(1)(A), requires a 16-level increase if the defendant had a prior conviction for a “crime of violence.” A “crime of violence” is defined in part to include “aggravated assault.” Defendant had a prior conviction under New Jersey Stat. Ann. § 2C:12-1(b)(1) for aggravated assault. The Ninth Circuit held that New Jersey aggravated assault did not categorically qualify as a “crime of violence” because it requires only “extreme indifference recklessness” in committing it. U.S. v. Garcia-Jimenez, __ U.S. __ (9th Cir. Nov. 19, 2015) No. 14-10484.

5th Circuit says defendant recklessly created risk of death by leaving sick illegal alien at rest stop. (340) Defendant and a co-conspirator transported a group of illegal aliens from Houston to Los Angeles in a minivan. Tovar, one of the aliens, became sick during the ride, and Tovar’s wife informed the conspirators via telephone that Tovar had diabetes and needed a specific type of insulin. When Tovar became unresponsive, the conspirators left him at a rest stop, where his dead body was later found. Defendant was convicted of conspiracy to transport and conceal illegal aliens, during which the death of a person resulted. The Fifth Circuit upheld a six-level enhancement under § 2L1.1(b)(6) for intentionally or recklessly creating a substantial risk of death or serious bodily injury. The district court found that defendant was aware of several indications that Tovar needed medical care: that he appeared dehydrated, was alternately hot and cold, and was diabetic and needed a specific type of insulin. It was plausible to conclude that defendant’s failure to get medical aid for Tovar under these circumstances placed him at substantial risk of death or serious injury. U.S. v. Muniz, __ F.3d __ (5th Cir. Oct. 15, 2015) No. 13-20739.

5th Circuit upholds increase for causing death where defendant left unresponsive illegal alien at rest stop. (340) Defendant and a co-conspirator transported a group of illegal aliens from Houston to Los Angeles in a minivan. Tovar, one of the aliens, became sick during the ride, and Tovar’s wife informed the conspirators via telephone that Tovar had diabetes and needed a specific type of insulin. When Tovar became unresponsive, the conspirators left him at a rest stop, where his dead body was later found. The Fifth Circuit upheld a ten-level increase under § 2L1.1(b)(7) for causing another person’s death. An ambulance service was four miles from where Tovar was left, and at least 40 hospitals or medical facilities were along the route where Tovar was abandoned. Defendant never called 911 or any medical facility. If Tovar had received both insulin and antibiotic therapy, the expert opined, “he very possibly could have survived.” The district court did not clearly err in finding that defendant’s failure to obtain medical help for Tovar was a but-for cause of Tovar’s death. The plausibility of this finding was reinforced by the jury’s specific determination that Tovar “died as a result of” defendant’s conduct. U.S. v. Muniz, __ F.3d __ (5th Cir. Oct. 15, 2015) No. 13-20739.

8th Circuit says Johnson puts in doubt prior opinion that guidelines cannot be unconstitutionally vague. (135)(340)(520)(540) Defendant’s prior conviction was found to be a crime of violence under the “residual clause” of the career offender guideline, § 4B1.2(a)(2), because it involved “conduct that presents a serious potential risk of physical injury to another.” He argued that this clause was unconstitutionally vague under Johnson v. U.S., 576 U.S. __, 135 S. Ct. 2551 (2015), which struck down identical language in the Armed Career Criminal Act, 18 U.S.C. §924(e), as unconstitutionally vague. However, in U.S. v. Wivell, 893 F.2d 156 (8th Cir. 1990), an Eighth Circuit panel concluded that the sentencing guidelines are “not susceptible to a vagueness attack.” The Eighth Circuit found that the reasoning in Wivell that the guidelines could not be unconstitutionally vague was doubtful after Johnson. The panel remanded the case to the district court to decide whether the residual clause of the career offender guideline was unconstitutional. U.S. v. Taylor, __ F.3d __ (8th Cir. Oct. 9, 2015) No. 14-2635.

9th Circuit finds definition of “crime of violence” in 18 U.S.C. §16(b) void for vagueness. (120)(340)(504) (540) In Johnson v. U.S., 135 S. Ct. 2551 (2015), the Supreme Court found that the Armed Career Criminal Act, 18 U.S.C. §924(e), was void for vagueness to the extent it relied on a definition of “violent felony” that included any felony that “involves conduct that presents a serious potential risk of physical injury to another.” The Ninth Circuit held that 18 U.S.C. §16(b) was likewise void for vagueness in stating that a “crime of violence” includes any felony that “by its nature, involves a substantial risk that physical force against the person or property of another may be used in committing the offense.” Dimaya v. Lynch, __ F.3d __ (9th Cir. Oct. 19, 2015) No. 11-71307.

1st Circuit reverses for insufficient showing that defendant harbored 100 aliens. (340) Defendant, along with 50 co-conspirators, was part of a scheme to supply undocumented aliens in the continental U.S. with the identities of U.S. citizens residing in Puerto Rico. He pled guilty to conspiracy to commit identity fraud (Count 1) and conspiracy to encourage aliens to reside in the U.S. (Count 2). The two counts were grouped, and the district court found that Count 2 had the highest offense level. The calculation for Count 2 contained a nine-level enhancement under §2L1.1(b)(2)(C) for inducing or harboring 100 or more aliens. The First Circuit ruled that the record was inadequate to support the enhancement for harboring 100 aliens. The judge did not say a word about how he determined this particular enhancement was warranted. The record did not make it irrefutably clear that defendant did in fact induce or harbor 100 aliens. Notably, probation and the government, though faced with the same record, disagreed on this point. U.S. v. Mendez, __ F.3d __ (1st Cir. Sept. 11, 2015) No. 14-1566.

9th Circuit says California possession of child porn is not aggravated felony. (340)(504) The guideline for illegal reentry after deportation, §2L1.2, uses the definition of “aggravated felony” in 8 U.S.C. §1101(a)(43). Section 1101(a)(43) includes offenses “described in” the federal child pornography statutes. The Ninth Circuit held that possessing child pornography under California Penal Code §311.11(a) is not an “aggravated felony” under §1101(a)(43) because it includes a broader range of pornographic depictions than the federal child pornography statute. Chavez-Solis v. Lynch, __ F.3d __ (9th Cir. Oct. 6, 2015) No. 11-73958.

7th Circuit holds that sexual abuse under statute placing age of consent at 17 was crime of violence. (340) Defendant received a 16-level “crime of violence” increase under §2L1.2(b)(1)(A) based his Illinois conviction for aggravated criminal sexual abuse. He challenged the enhancement for the first time on appeal, arguing that the Illinois statute was broader than the generic version of either “sexual abuse of a minor,” or “statutory rape,” because the generic versions of both offenses placed the age of consent at 16, while the Illinois statute placed it at 17. The Seventh Circuit upheld the enhancement. In U.S. v. Martinez–Carrillo, 250 F.3d 1101 (7th Cir. 2001), the court held that the defendant had committed “sexual abuse of a minor” in part because the victim was younger than 18. Martinez-Carillo held that the “ordinary, contemporary, and common meaning” of the word “minor” – and thus the meaning relevant to a generic offense – was one who had not reached the age of 18. The panel rejected defendant’s attempts to distinguish Martinez-Carillo or outright reject it. U.S. v. Zuniga-Galeana, __ F.3d __ (7th Cir. Aug. 24, 2015) No. 14-1994.

Supreme Court to decide if sentencing error affects substantial rights. (340)(855) Defendant pleaded guilty to illegal reentry after deportation, in violation of 8 U.S.C. §1326. At sentencing, the district court counted defendant’s prior burglary convictions as multiple convictions. Defendant did not object. On appeal, the Fifth Circuit held that the district court had erred and that the error affected defendant’s guidelines range, but found that defendant had not established plain error because he had not shown that the error affected his substantial rights. The Supreme Court granted certiorari to determine whether a sentencing error affects a defendant’s substantial rights under the plain error standard. Molina-Martinez v. U.S., __ U.S. __, __ S. Ct. __ (Oct. 1, 2015) (granting certiorari).

9th Circuit affirms denying joint request for fast-track departure. (340)(742) At defendant’s sentencing for illegal reentry after deportation, in violation of 8 U.S.C. § 1326, the district court declined the parties’ joint request for a fast-track departure under § 5K3.1, finding the recommended sentence too short. Instead, the district court sentenced defendant to 27 months, a sentence within the defendant’s guidelines range without the departure. The Ninth Circuit found that the district court had discretion to reject the fast-track departure. The court of appeals found that after Booker all departures are discretionary and found no indication that Congress intended fast-track departures to be mandatory. U.S. v. Rosales-Gonzales, __ F.3d __ (9th Cir. Sept. 15, 2015) No. 14-50286.

9th Circuit rejects “parsimony” argument in illegal reentry case. (340)(742) Defendant pleaded guilty to illegal reentry after removal, in violation of 8 U.S.C. § 1326. At sentencing, the district court rejected the parties’ joint recommendation of a 15-month sentence and instead imposed a 27-month sentence. On appeal, defendant argued that this sentence violated the “parsimony principle” in 18 U.S.C. § 3553(a) that a sentence should be sufficient but not greater than necessary to comply with the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2). The court of appeals found that a challenge based on the “parsimony principle” is “simply another way of stating that the sentence is unreasonable” and found that the district court had not acted unreasonably in imposing a 27-month sentence. U.S. v. Rosales-Gonzales, __ F.3d __ (9th Cir. Sept. 15, 2015) No. 14-50286.

11th Circuit holds Johnson established new rule of constitutional law, but is not retroactive. (340)(520) (540)(880) Defendant was sentenced as a career offender under the then-mandatory sentencing guidelines. He moved for leave to file a second or successive motion under § 2255 based on the Supreme Court’s recent decision in Johnson v. U.S., __ U.S. __, 135 S.Ct. 2551 (2015), which struck down the ”residual clause” definition of “violent felony” in the Armed Career Criminal Act, 18 U.S.C. § 924(e), as void for vagueness. The Eleventh Circuit agreed that Johnson announced a new substantive rule of constitutional law, but rejected the notion that the Johnson opinion required the new rule to be applied retroactively on collateral review. “When the Supreme Court makes a rule retroactive for collateral-review purposes, it does so unequivocally, in the form of a holding.” That did not happen here. Judge Pryor dissented. In re Rivero, __ F.3d __ (11th Cir. Aug. 12, 2015) No. 15-13089-C.

4th Circuit finds discharging firearm into occupied building was not a crime of violence. (340)(520) Defendant received a 16-level crime of violence increase under § 2L1.2, based on his previous North Carolina conviction under N.C.G.S.A. § 14–34.1(a) for discharging a firearm into an occupied building. The district court ruled that defendant’s offense necessarily involved the use, attempted use, or threatened use of force against a person. The Fourth Circuit reversed, because under North Carolina law, there need be only the use of force against property to sustain a conviction. The crime is complete when a person (1) intentionally (2) discharges a firearm (3) toward an occupied building (4) when the shooter knows or has reasonable grounds to believe that the building might be occupied. Even if peripherally relevant, proving that an occupant was targeted or threatened was unnecessary to satisfying the offense’s elements. Judge Wilkinson dissented. U.S. v. Parral-Dominguez, __ F.3d __ (4th Cir. July 23, 2015) No. 14-4546.

8th Circuit says “aggravated misdemeanor” punishable by two years in prison was a felony. (340) Defendant pled guilty to illegally reentering this country following removal, in violation of 8 U.S.C. § 1326(a). A violation of § 1326(a) is punishable by up to two years’ imprisonment. However, § 1326(b) authorizes imprisonment of “not more than 10 years” if a defendant’s prior removal was after a conviction for a felony. Defendant admitted he had a previous Iowa conviction for third-degree attempted burglary, an “aggravated misdemeanor” punishable by up to two years under state law. Iowa Code §§ 713.6B, 903.1(2). But he did not admit that this constituted a felony. The Eighth Circuit held that the word “felony” in § 1326(b)(1) means any state or federal offense punishable by a maximum term of more than one year in prison. Although Iowa classified third-degree attempted burglary as an aggravated misdemeanor, it was punishable by up to two years in prison. Therefore it was a felony under 8 U.S.C. § 1326(b)(1). U.S. v. Figueroa-Alvarez, __ F.3d __ (8th Cir. Aug. 4, 2015) No. 14-2557.

8th Circuit rules manslaughter with reckless mens rea was crime of violence. (340) Defendant pled guilty to reentering the U.S. illegally, and received a 16-level enhancement under §2L1.2(b)(1)(A)(ii) for a prior crime of violence. Defendant had a prior conviction for manslaughter, in violation 9 Guam Code Ann. §16.50(a)(1). Defendant argued that because his Guam manslaughter conviction required only a reckless mental state, rather than an intentional one, the 16-level increase was improper. The district court rejected this argument, finding that a reckless mens rea in the context of a criminal homicide was sufficient to establish a crime of violence under §2L1.2. Following the Model Penal Code, the Eighth Circuit held that “manslaughter “as enumerated in the guidelines means a criminal homicide that is committed (a) recklessly or (b) intentionally if committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse. Because defendant’s manslaughter conviction met the generic federal definition of manslaughter, it qualified as a crime of violence under §2L1.2(b)(1)(A)(ii). U.S. v. Kosmes, __ F.3d __ (10th Cir. July 8, 2015) No. 14-3072.

9th Circuit finds federal drug conspiracy is drug-trafficking offense. (340)(504) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. §1326. The guideline for that offense, §2L1.2(b)(1), provides for a 16-level enhancement if the defendant had a prior conviction for a drug-trafficking offense. The application notes to §2L1.2 state that conspiring to commit a drug-trafficking offense qualifies as such an offense. Defendant had a prior conviction for conspiracy to distribute marijuana, in violation of 21 U.S.C. §846. The Ninth Circuit held that a violation of §846 for conspiracy to commit drug trafficking qualifies for the 16-level enhancement under §2L1.2(b)(1). The court rejected defendant’s argument that §846 does not qualify as a conspiracy because it does not require proof of an overt act. U.S. v. Rivera-Constantino, __ F.3d __ (9th Cir. Aug. 19. 2015) No. 14-10314.

10th Circuit holds Illinois attempted murder was crime of violence even if substantive offense was not. (340) Defendant received a 16-level crime of violence enhancement under § 2L1.2(b)(1)(A)(ii) based on his prior Illinois conviction for attempted murder. He argued that Illinois’ statutory definition of murder was broader than its generic counterpart, because it included killing an individual with intent to do great bodily harm. The Tenth Circuit found that even if a state’s statutory definition of an enumerated crime of violence was broader than its uniform generic counterpart, a state conviction for an attempt to commit that crime may nevertheless constitute a crime of violence. See U.S. v. Gomez–Hernandez, 680 F.3d 1171 (9th Cir. 2012). Illinois’ definition of attempt required the specific intent to commit a substantive offense. Read in tandem with the Illinois statute that defined murder as killing an individual with the intent to kill or do great bodily harm or with the knowledge one’s actions will cause death, the resulting statutory definition of attempted murder required the intent to kill. U.S. v. Castro-Gomez, __ F.3d __ (10th Cir. July 6, 2015) No. 14-2051. XE “U.S. v. Castro-Gomez, __ F.3d __ (10th Cir. July 6, 2015) No. 14-2051.”

1st Circuit says prior felony need not be alleged in indictment or proved beyond a reasonable doubt. (340) Defendant pled guilty to illegal reentry pursuant to 18 U.S.C. §1326. At sentencing, the district court found that the statutory maximum was 20 years under 8 U.S.C. §1326(b)(2) because defendant had illegally reentered the United States after a conviction for an aggravated felony. Defendant argued on appeal that the fact that his prior conviction was an aggravated felony had to be alleged in the indictment and proved beyond a reasonable doubt in order for him to be sentenced to more than the two-year statutory maximum under 8 U.S.C. §1326(a). The First Circuit held that defendant’s argument was foreclosed by Almendarez–Torres v. U.S., 523 U.S. 224 (1998), which held that §1326(b)(2) did not define a crime separate from §1326(a). Accordingly, defendant’s aggravated felony conviction was not an element of the crime defined in subsection (b)(2), and did not need to be charged in the indictment. U.S. v. Jimenez-Banegas, __ F.3d __ (1st Cir. June 24, 2015) No. 13-1980.

11th Circuit approves same sentence on remand despite elimination of 16-level increase. (340)(741) Defendant was convicted of illegal reentry following deportation. In his first appeal, the Eleventh Circuit vacated his 87-month sentence, reversing the district court’s finding that his prior Florida conviction for false imprisonment was as a “crime of violence” under §2L1.2(b)(1)(A)(ii). The removal of the 16-level crime of violence enhancement reduced his guideline range from 70-87 months to 21-27 months. On remand, the court varied upward, and again imposed an 87-month prison term. The Eleventh Circuit held that the 87-month sentence was substantively reasonable. The court followed the spirit and letter of precedent and obeyed the applicable statutory provisions when it considered the §3553(a) factors at sentencing. The district court supported the 60-month variance with significant justifications, including the facts of defendant’s earlier violent crimes. The panel rejected the dissent’s argument that it has been “sending a message to district courts” that an upward variance is less likely to get vacated than a downward variance. U.S. v. Rosales-Bruno, __ F.3d __ (11th Cir. June 19, 2015) No. 12-15089.

Supreme Court to decide if state offense is aggravated felony despite lack of interstate commerce. (340)(504) A defendant with an “aggravated felony” conviction is subject to an enhanced sentence under 8 U.S.C. §1326(b). In 8 U.S.C. §1101(a)(43), the term “aggravated felony” is defined to include a state offense listed in §1101(a)(43) and that is “described in” a federal statute. The Supreme Court granted certiorari to decide whether a state offense constitutes an aggravated felony under §1101(a)(43), on the ground that the state offense is “described in” a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks. Torres v. Lynch, __ U.S. __, 135 S. Ct. __ (June 29, 2015) (granting certiorari).

5th Circuit holds that prior Louisiana aggravated assault conviction was not crime of violence. (340) Defendant received a 16-level crime of violence enhancement under §2L1.2(b)(1)(A)(ii) based on his prior Louisiana aggravated battery conviction. The Fifth Circuit reversed. The Louisiana statute under which defendant was convicted defined aggravated battery as “a battery committed with a dangerous weapon.” La.Rev.Stat. §14:34. Battery was defined as either (a) the intentional use of force or violence, or (b) the intentional administration of poison or other noxious liquid or substance. There were no Shepard-compliant documents to identify the subpart of the statute that formed the basis of defendant’s conviction. Thus, the panel could not exclude the possibility that defendant’s conviction was based on the administration of poison. After comparing the statutes and reviewing applicable law, the panel concluded that the offenses were meaningfully different, and therefore, a conviction for the “least culpable act” under §14:34 fell outside of the generic, contemporary meaning of aggravated assault. U.S. v. Hernandez-Rodriguez, __ F.3d __ (5th Cir. June 5, 2015) No. 14-40321

8th Circuit holds that evidence and argument in favor of crime of violence enhancement did not breach plea agreement. (340)(790) Defendant pled guilty to illegal reentry pursuant to a plea agreement in which he waived the right to appeal his conviction and sentence. He argued that the district court breached the plea agreement by arguing that he was convicted of a previous felony crime of violence, to support a 16-level crime of violence increase under §2L1.2(b)(1)(A)(ii). He contended that this contradicted the factual stipulation in his plea agreement that his 2006 California assault conviction resulted in a sentence of 365 days in jail. The Eighth Circuit found no breach. The government honored the stipulated base offense level at sentencing, and honored the plea agreement’s provision to recommend only a two-level departure under §5K3.1. The plea agreement did not prohibit the government from seeking sentencing enhancements for which there was no stipulation, such as the §2L1.2(b)(1)(A)(ii) enhancement. The government’s evidence offered in support of the §2L1.2(b)(1)(A)(ii) enhancement did not contradict the factual stipulation in the plea agreement. Defendant’s California conviction for assault with a deadly weapon was a “wobbler” offense that could qualify as either a misdemeanor or a felony, and the government offered evidence that the offense was a felony. Because the government did not breach the agreement, the waiver was enforceable. U.S. v. Quebedo, __ F.3d __ (8th Cir. May 29, 2015) No. 14-2246.

4th Circuit says whether prior offense was a felony depends on statutory maximum, not guideline range. (340) Defendant pled guilty to reentering the U.S. after deportation, and his sentence was increased by 12 levels under §2L1.2(b)(1)(A)(vii) based on his 1997 conviction for unlawfully transporting aliens, which the district court found was “an offense punishable by imprisonment for a term exceeding one year” under Note 2 to §2L1.2. On appeal, defendant argued that U.S. v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), precluded the enhancement because the guidelines range for his 1997 conviction under the then-mandatory guidelines was 0-6 months. The Fourth Circuit rejected the argument, noting that the judge who sentenced defendant in 1997 had discretion to sentence him to five years. As the Supreme Court made clear in U.S. v. Rodriquez, 553 U.S. 377 (2008), the “maximum term of imprisonment . . . prescribed by law” for an offense is the statutory maximum, not “the top sentence in a guideline range.” U.S. v. Bercian-Flores, __ F.3d __ (4th Cir. May 14, 2015) No. 13-4504.

7th Circuit remands where court failed to comment on potentially meritorious argument. (340)(750) Defendant pled guilty to illegal reentry after deportation. He argued for a below-guideline sentence for three reasons: first, the government’s delay in charging made him ineligible for a sentence concurrent with his state sentence and failed to give him credit for time spent in immigration detention; second, the 16-level enhancement under U.S.S.G. §2L1.2(b)(1)(A) was unfairly severe; and third, that he would face unusual hardships as a deportable alien. The district court imposed a guideline sentence with only the tersest explanation. The Seventh Circuit reversed and remanded, because defendant’s first argument had recognized legal merit, and the record did not show that the district court considered it. The second two arguments did not require explicit comment by the district court. Both arguments were simply blanket challenges to the applicable guidelines. While a district court has discretion to consider such challenges, a court can reject them without expressly addressing them. Defendant’s first argument was much stronger, and the court should have addressed it. U.S. v. Estrada-Mederos, __ F.3d __ (7th Cir. Apr. 29, 2015) No. 14-2417.

4th Circuit holds that North Carolina kidnapping fit within generic definition of kidnapping. (340)(520) Defendant pled guilty to illegal reentry, and received a 16-level crime of violence enhancement based on his prior conviction under North Carolina General Statute §14–39 for second-degree kidnapping. Kidnapping is an enumerated “crime of violence.” The Fourth Circuit found that the North Carolina kidnapping fit the generic definition of kidnapping, and thus qualified as a crime of violence. The elements of generic kidnapping are (1) unlawful restraint or confinement of the victim, (2) by force, threat or deception, or in the case of a minor or incompetent individual, without the consent of a parent or guardian, (3) either for a specific nefarious purpose or with a similar element of heightened intent, or (4) in a manner that constitutes a substantial interference with the victim’s liberty. The enumerated nefarious purposes required by North Carolina were well within the heartland of generic kidnapping. They included abduction or restraint of victims for ransom or to further the commission of a felony, to terrorize victims or cause them bodily injury, or to hold them in involuntary servitude. U.S. v. Flores-Granados, __ F.3d __ (4th Cir. Apr. 15, 2015) No. 14-4249.

5th Circuit says court properly looked to PSR to see if prior money laundering offense involved more than $10,000. (340)(770) Defendant received an eight-level aggravated felony enhancement under §2L1.2(b)(1)(C) based on a prior money laundering conviction. Money laundering is an aggravated felony if “the amount of the funds exceeded $10,000.” 8 U.S.C. §1101(a)(43)(D). The statute under which defendant was convicted did not contain a $10,000 threshold. Defendant argued for the first time on appeal that the district court improperly relied on his PSR to find that his prior conviction was an aggravated felony, in violation of Shepard v. United States, 544 U.S. 13 (2005). The Fifth Circuit found no error in the court’s use of the PSR. The issue before the district court was not whether the generic crime in 8 U.S.C. §1101(a)(43)(D) was satisfied by the money laundering statute. The issue was whether defendant’s money laundering conviction involved a loss in excess of $10,000. Where there is no generic crime equivalent to a particular §1101(a)(43) subdivision, Nijhawan v. Holder, 557 U.S. 29 (2009), permits a court to use a circumstance-specific approach. Section 1101(a)(43)(D) clearly referred to a specific circumstance, where the funds exceeded $10,000. U.S. v. Mendoza, __ F.3d __ (5th Cir. Apr. 9, 2015) No. 14-40168.

5th Circuit holds that sentence discharged by correctional administrator was not suspended. (340)(504) After defendant had served ten months of his two-year Texas drug sentence, his sentence was discharged, and he was released to immigration detainers and deported. He later pleaded guilty to illegally reentering the United States. He received a 16-level enhancement under §2L1.2(b)(1)(A)(i) for a previous “drug trafficking offense for which the sentence imposed exceeded 13 months….” Defendant argued that his “sentence of imprisonment” was less than 13 months because he was discharged after serving ten months. See §4A1.2(b)(2) (excluding suspended sentence from a “sentence of imprisonment”). The Fifth Circuit held that defendant’s discharged sentence did not qualify as a suspended sentence under §4A1.2(b)(2) because it was not suspended by a court. In defendant’s case, a correctional administrator, not a judge, made the decision to release defendant prior to the completion of his sentence. Moreover, a discharged sentence under Texas law was not equivalent to a suspended sentence.U.S. v. Rodriguez-Bernal, __ F.3d __ (5th Cir. Apr. 3, 2015) No. 14-10287.

5th Circuit holds that government met burden of establishing that prior drug conviction was for heroin. (340) Defendant received a 16-level drug trafficking enhancement under §2L1.2(b)(1)(A)(i) based on his prior controlled substance conviction under California Health and Safety Code §11351. While the complaint alleged the controlled substance was heroin, the abstract did not specify a particular controlled substance. Nonetheless, the district court found that defendant had been convicted of possessing heroin, concluding that the complaint served as the charging document for the conviction. Under Shepard, a complaint may be a proper charging document for purposes of narrowing the scope of the conviction. Moreover, both defendant and the probation officer compiling the PSR referred to the complaint as the “charging instrument” for the conviction. The Fifth Circuit held that the government met its burden of establishing that the §11351 conviction was for possession of heroin. Since heroin is listed as a “controlled substance” under the Controlled Substances Act, and since the conviction resulted in a two-year sentence of imprisonment, the conviction qualified as a “drug trafficking offense” under §2L1.2. U.S. v. Gomez-Alvarez, __ F.3d __ (5th Cir. Mar. 31, 2015) No. 14-40059.

5th Circuit says court properly relied on prior conviction obtained under alias. (340)(765) Defendant received a 16-level drug trafficking enhancement under §2L1.2(b)(1)(A)(i) based on his prior state conviction for possession for sale of a controlled substance. His PSR listed “Jorge Ortiz” as one of several aliases used by defendant and indicated that defendant had been convicted of the offense in California “using the name Jorge Ortiz.” The district court determined that defendant was convicted in California using an alleged alias, “Jorge Ortiz.” Defendant did not affirmatively deny that he and Jorge Ortiz were one and the same. He argued, though, that the government did not establish with credible documentation the fact that he was the person convicted. The Fifth Circuit found no error. As defendant offered no rebuttal evidence to refute the information contained in the PSR, the district court was free to adopt it without further inquiry. U.S. v. Gomez-Alvarez, __ F.3d __ (5th Cir. Mar. 31, 2015) No. 14-40059.

5th Circuit holds that possession with intent to distribute for no remuneration was “drug trafficking” offense. (340) Defendant received a 16-level enhancement under §2L1.2(b)(1)(A)(i) for a prior “drug trafficking” conviction based upon a 2002 Georgia conviction for possession with intent to distribute marijuana. He argued, in light of the Supreme Court’s decision in Moncrieffe v. Holder, __ U.S. __, 133 S. Ct. 1678 (2013), that the offense did not qualify as a drug trafficking offense because it criminalized possession with intent to distribute for no remuneration. The Fifth Circuit disagreed, finding Moncrieffe distinguishable. The Application Note to §2L1.2(b)(1)(A)(i) defines as a “drug trafficking offense” precisely the type of conviction at issue here. Moncrieffe involved the “aggravated felony” provision of the Immigration and Nationality Act (INA). That statute looks to whether the state offense would constitute a felony under the federal drug laws. The Court held that the Georgia conviction did not fulfill that felony requirement because “distributing a small amount of marihuana for no remuneration” was a misdemeanor under federal law. Moncrieffe did not control here. U.S. v. Martinez-Lugo, __ F.3d __ (5th Cir. Mar. 27, 2015) No. 13-40924, withdrawing and replacing U.S. v. Martinez-Lugo, 773 F.3d 678 (5th Cir. 2014).

9th Circuit says Arizona aggravated assault conviction was not “crime of violence.” (340)(520) Defendant pleaded guilty to illegal reentry after deportation, in violation of 8 U.S.C. §1326. Defendant had a prior conviction under Arizona Revised Statutes §13-1204(A)(2) for aggravated assault. At sentencing, the district court found that this offense was a “crime of violence” under §2L1.2(b)(1)(A)(ii) because it had as an element “the use, attempt use, or threatened use of physical force against the person of another.” The Ninth Circuit held that this offense was not categorically a “crime of violence” because it could be committed with recklessness. The court also held that defendant’s prior conviction did not qualify as a “crime of violence” under the modified categorical approach because the factual basis for defendant’s change-of-plea in Arizona state court did not establish that he had pleaded guilty to an intentional or knowing offense. U.S. v. Sahagun-Gallegos, __ F.3d __ (9th Cir. April 10, 2015) No. 13-10095.

6th Circuit approves upward variance for defendant who repeatedly illegally entered country. (340)(741) Defendant was convicted of illegally reentering the country after deportation, resulting in a guideline range of 8-14 months. The district court sentenced him to 18 months and a three-year term of supervised release. The court noted that this was defendant’s fourth removal proceeding, and found that specific deterrence of defen¬dant was a priority because “[n]othing that any judge in this country has done has deterred him from illegal activity.” The Sixth Circuit held that the upward variance was reasonable in light of defendant’s criminal record and immigration history. The district court also cited two other sentencing goals: the need to protect the public, and the need for just punishment. Defendant had pled guilty to charges of domestic violence on three different occasions. While a crime like illegal reentry might seem like a poor fit for an upward variance on retributive grounds, the sentence here was substantively reasonable because (a) the variance was a relatively minor one, (b) just punishment was not the dominant factor cited by the court, and (3) this was not a “mine-run” illegal reentry case, but involved a defendant with three prior domestic violence convictions. U.S. v. Solano-Rosales, __ F.3d __ (6th Cir. Mar. 23, 2015) No. 13-2692.

9th Circuit reverses use of modified categorical approach to hold assault was intentional. (340)(504) Defendant, convicted of illegal reentry after deportation, in violation of 8 U.S.C. §1326, had a prior conviction under Arizona Revised Statutes §§13-1203 and 13-1204 for aggravated assault. The indictment in the Arizona case stated that defendant knowingly caused physical injury to another by using a metal bar. At the state change-of-plea hearing, defendant’s counsel stated that defendant hit the victim of the assault in the head with a metal bar. At sentencing on the §1326 offense, the district court held that defendant’s prior offense was a “crime of violence” under §2L1.2(b)(1)(A) based on defendant’s counsel’s statement at the plea colloquy. The Ninth Circuit held that the district court erred in concluding under the modified categorical approach that defendant committed the assault intentionally and there¬fore that it constituted a crime of violence. U.S. v. Maria-Acosta, __ F.3d __ (9th Cir. Mar. 23, 2015) No. 13-10475.

9th Circuit reverses use of modified categorical approach to hold assault was intentional. (340)(504) Defendant, convicted of illegal reentry after deportation, in violation of 8 U.S.C. §1326, had a prior conviction under Arizona Revised Statutes §§13-1203 and 13-1204 for aggravated assault. The indictment in the Arizona case stated that defendant knowingly caused physical injury to another by using a metal bar. At the state change-of-plea hearing, defendant’s counsel stated that defendant hit the victim of the assault in the head with a metal bar. At sentencing on the §1326 offense, the district court held that defendant’s prior offense was a “crime of violence” under §2L1.2(b)(1)(A) based on defendant’s counsel’s statement at the plea colloquy. The Ninth Circuit held that the district court erred in concluding under the modified categorical approach that defendant committed the assault intentionally and therefore that it constituted a crime of violence. U.S. v. Maria-Acosta, __ F.3d __ (9th Cir. Mar. 23, 2015) No. 13-10475.

6th Circuit approves upward variance for defendant who repeatedly illegally entered country. (340)(741) Defendant was convicted of illegally reentering the country after deportation, resulting in a guideline range of 8-14 months. The district court sentenced him to 18 months and a three-year term of supervised release. The court noted that this was defendant’s fourth removal proceeding, and found that specific deterrence of defendant was a priority because “[n]othing that any judge in this country has done has deterred him from illegal activity.” The Sixth Circuit held that the upward variance was reasonable in light of defendant’s criminal record and immigration history. The district court also cited two other sentencing goals: the need to protect the public, and the need for just punishment. Defendant had pled guilty to charges of domestic violence on three different occasions. While a crime like illegal reentry might seem like a poor fit for an upward variance on retributive grounds, the sentence here was substantively reasonable because (a) the variance was a relatively minor one, (b) just punishment was not the dominant factor cited by the court, and (3) this was not a “mine-run” illegal reentry case, but involved a defendant with three prior domestic violence convictions. U.S. v. Solano-Rosales, __ F.3d __ (6th Cir. Mar. 23, 2015) No. 13-2692.

5th Circuit holds that Texas aggravated assault was violent felony. (340) Defendant pled guilty to illegal reentry following deportation. He received an 12-level enhancement under §2L1.2(b)(1)(A)(ii) based on a 1990 Texas conviction for aggravated assault with a deadly weapon, under Texas Penal Code §22.02(a), which the district court found was a crime of violence. Defendant conceded that the state indictment, considered alone, would establish a conviction for aggravated assault with a deadly weapon under §22.02(a)(4), which was a crime of violence. He argued, though, that contradictory statements on the face of the judgment regarding the use of a deadly weapon, read in conjunction with the terms of his original plea agreement, “affirmatively cast[ ] doubt on” whether he was ultimately convicted under that subsection. Section 22.02(a) was a divisible statute, with other subsections not constituting crimes of violence. The Fifth Circuit affirmed, finding any inconsistency was fully explained by the law of Texas. The fact that the court did not enter a separate and affirmative deadly weapon finding in the written judgment cast no doubt on the fact that he was convicted under §22.02(a)(4). U.S. v. Sanchez-Sanchez, __ F.3d __ (5th Cir. Feb. 24, 2015) No. 14-10305.

5th Circuit says Florida manslaughter was not crime of violence. (340) Defendant was convicted of being illegally in the United States after deportation, and received a 16-level enhancement under §2L1.2(b)(1)(A) based on the district court’s finding that his prior Florida manslaughter conviction was a crime of violence. The Fifth Circuit reversed, agreeing with defendant that manslaughter as defined by the Florida statute was not a crime of violence. First, Florida Statute §782.07(1) did not have as an element the use of force. Second, although manslaughter was one of enumerated crimes of violence in §2L1.2(b)(1)(A), the Florida offense did not meet the definition of generic manslaughter. Generic contemporary manslaughter requires a mental state of either intent to kill or recklessness, a “conscious disregard of perceived homicidal risk.” The Florida manslaughter statute could be violated by act, by procurement, or by culpable negligence. The panel reviewed Florida cases to conclude that Florida manslaughter by act covers more than just those acts committed with intent to kill or recklessness as to death. Section 782.07(1) thus fell outside the definition of generic manslaughter, and did not constitute a crime of violence. U.S. v. Garcia-Perez, __ F.3d __ (5th Cir. Feb. 23, 2015) No. 13-20482.

5th Circuit finds Florida methamphetamine trafficking was not categorically a drug trafficking offense. (340) Defendant pled guilty to illegal reentry after deportation, and received a 16-level enhancement under §2L1.2 based on the court’s finding that his prior Florida drug conviction qualified as a “drug trafficking offense.” The Fifth Circuit reversed, holding that his prior conviction for “Trafficking in Methamphetamine 14 Grams or More” was not categorically a drug trafficking offense under the §2L1.2. The Florida statute defines mere possession as a form of trafficking, provided the defendants possess a sufficient quantity. By classifying mere possession as drug trafficking, the Florida statute defines drug trafficking more broadly than do the guidelines. Under the categorical approach, application of the “drug trafficking offence” enhancement was improper. Moreover, the district court plainly erred by relying on the PSR in applying the sentence enhancement. U.S. v. Sarabia-Martinez, __ F.3d __ (5th Cir. Feb. 20, 2015) No. 14-50064.

9th Circuit finds prior New Jersey criminal sexual contact offense was a “crime of violence.” (340)(504) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. §1326. At sentencing, the district court enhanced defendant’s offense level under §2L1.2(b)(1)(A)(ii) because defendant had a prior conviction for a “crime of violence.” The Guidelines define a “crime of violence” in part to reach a “forcible sex offense.” Defendant had a conviction under New Jersey law for Criminal Sexual Contact. Defendant’s plea colloquy in New Jersey showed that he engaged in sexual contact with the victim without her consent. The Ninth Circuit held that the district court properly found that defendant committed a “crime of violence.” U.S. v. Mendez-Sosa, __ F.3d __ (9th Cir. March 2, 2015) No. 13-10664.

10th Circuit affirms sentence at bottom of range for illegal reentry offense. (340)(742) Defendant was convicted of illegal reentry by a noncitizen previously deported after an aggravated felony. The district court denied his motion for a downward variance, and sentenced him to 41 months, the bottom of the guideline range. The Tenth Circuit affirmed, in light of defendant’s illegal reentry, prior convictions, and resistance to arrest. The case was distinguishable from U.S. v. Hernandez–Castillo, 449 F.3d 1127 (10th Cir. 2006), where the defendant had a prior conviction for statutory rape of a 14-year-old when he was 18, and he had maintained support and contact with the child and mother. Here, by contrast, defendant was 25 when he had sex with the 14-year-old, and he did not maintain support or contact with the child or mother. Moreover, Hernandez-Castillo’s prior conviction could be classified as either a misdemeanor or a felony under California law, whereas defendant’s prior conviction was classified as a felony under Colorado law. U.S. v. Castillo-Arellano, __ F.3d __ (10th Cir. Feb. 3, 2015) No. 14-1267.

11th Circuit remands where charging document did not show mental state for prior conviction. (340)(520) Defendant pled guilty to illegal reentry after deportation, and received a 16-level crime of violence increase based on his prior conviction for throwing a missile, in violation of Florida Statute §790.19. After sentencing, the Eleventh Circuit held, in U.S. v. Estrella, 758 F.3d 1239 (11th Cir. 2014), that §790.19 was a divisible statute that “effectively created several different crimes.” If the conviction involved wanton conduct, it was a crime of violence. However, if it only involved malicious conduct, it was not a crime of violence because it included damage to property. Here, the only Shepard-approved document was the information, which charged that defendant “wantonly or maliciously” threw a deadly missile at an occupied vehicle. Since defendant’s plea was to an information charging him in the disjunctive, the Eleventh Circuit was unable to determine on which mens rea element defendant’s conviction was based. Thus, as in Estrella, the court erred in concluding that this prior conviction was for a crime of violence. U.S. v. Estrada, __ F.3d __ (11th Cir. Feb. 6, 2015) No. 14-10230.

5th Circuit upholds increase for brandishing pellet gun at stash house. (340) Defendant assisted smugglers in operating a stash house for illegal aliens. He pled guilty to conspiring to harbor an illegal alien, 8 U.S.C. § 1324. Based on defendant’s display of a pellet gun, the district court applied a four-level enhancement for brandishing a weapon under § 2L1.1(b)(5)(b). The Fifth Circuit affirmed. There was sufficient evidence to support a finding that displaying the pellet gun was intended to intimidate the aliens. The aliens were not free to leave the stash house. Defendant recorded their names in a ledger, conducted regular head counts, instructed aliens not to go outside, confiscated cell phones, and scolded a juvenile who called a family member. Multiple aliens reported that defendant displayed the weapon in his waistband in the stash house. Two aliens witnessed him instruct another alien to bring him the weapon from his vehicle, and then place it in his waistband in the stash house. It was reasonable for the district court to infer that there was no other reason why defendant would have the pellet gun brought to him or carry it in his waistband other than to make it known to the aliens that he had a weapon and to assert his authority over the aliens at the stash house. U.S. v. Reyna-Esparza, __ F.3d __ (5th Cir. Jan. 29, 2015) No. 13-41347.

5th Circuit finds Texas stalking was not crime of violence, but error was harmless. (340)(520)(850) Defendant pled guilty to illegal reentry, and received a 16-level increase under § 2L1.2(b)(1)(A)(ii) for a prior crime of violence based on his Texas conviction for stalking, in violation of Texas Penal Code § 42.072. The Fifth Circuit agreed with defendant that the district court erred in finding that the Texas stalking conviction was a crime of violence. The stalking statute was disjunctive, but the indictment made clear that the offense for which defendant was convicted, Tex. Penal Code § 42.072, did not require the use, attempted use, or threatened use of physical force, because the statute criminalized behavior that another person feared was threatening bodily injury. However, the error was harmless because the district court specifically stated that defendant’s sentence would be the same even without the enhancement, because it would have varied upward based on the sentencing factors in 18 U.S.C. § 3553(a). U.S. v. Rodriguez-Rodriguez, __ F.3d __ (5th Cir. Jan. 2, 2015) No. 13-51021.

9th Circuit holds that California assault with a deadly weapon is crime of violence. (340)(504) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. At sentencing, the district court found that defendant’s prior conviction for assault with a deadly weapon, in violation of California Penal Code § 245(a)(1) was categorically a “crime of violence.” Relying on prior decisions, the Ninth Circuit affirmed that holding. U.S. v. Jimenez-Arzate, __ F.3d __ (9th Cir. Jan. 12, 2015) No. 12-50373.

5th Circuit says charging documents showed Florida aggravated battery conviction was crime of violence. (340) Defendant pled guilty to illegal reentry by a deported alien, and received a 16-level crime of violence enhancement under § 2L1.2(b)(1)(A)(ii), based on his prior Florida conviction for aggravated battery. Because the aggravated battery offense required that the accused also be guilty of simple battery, and because both the aggravated battery and simple battery statutes had two enumerated “disjunctive subsections,” there were “multiple, alternative versions of the crime” of Florida aggravated battery. The Fifth Circuit upheld court’s finding that defendant’s aggravated battery conviction was a crime of violence, because the charging documents showed that defendant was convicted under elements that combined to require the “use of physical force against the person of another.” The two elements required by the charging documents – intentional touching and causing great bodily harm – might not, by themselves, necessarily involve the use of force. However, because defendant’s conviction involved both of these elements, it necessarily required the use of force. U.S. v. Ceron, __ F.3d __ (5th Cir. Dec. 19, 2014) No. 13-40095.

5th Circuit approves upward departure where defendant had previously been permitted to plead to lesser charge. (340)(715)(770) Defendant pled guilty to being found unlawfully in the U.S. after deportation. His guideline range was 6-12 months, but the court departed upward to 24 months under Note 7 to § 2L1.2, which applies if the offense level substantially understated the seriousness of a prior conviction. The court noted that while the defendant plead guilty to public lewdness in 2005, he was originally charged with indecency with a child. The district court also noted that in 2008, defendant plead guilty to indecent exposure; however, he was originally charged with criminal attempt, indecency with a child by exposure, which was a crime of violence. The Fifth Circuit held that the district court properly departed under Note 7 to § 2L1.2. The court did not improperly consider defendant’s “bare arrest record.” The PSR included “the factual underpinnings” for the prior unadjudicated arrests. The PSR was based on detailed police reports which were based, in part, on interviews with the juvenile victims. Although defendant’s previous convictions did not qualify as crimes of violence, it was reason¬able to consider the conduct underlying his convictions as a basis for an upward departure. U.S. v. Fuentes, __ F.3d __ (5th Cir. Dec. 19, 2014) No. 13-20654..

Supreme Court reverses modified categorical approach where defendant was convicted under an “indivisible” statute. (340) The Armed Career Criminal Act, 18 U.S.C. § 924(e), increases the sentences of certain federal defendants who have three prior convictions for a “violent felony.” That term is defined to include “burglary.” Defendant had a prior conviction for burglary under California Penal Code § 459, which provides that a “person who enters” certain locations “with intent to commit larceny” commits burglary. In holding that defendant’s sentence could be used to enhance his sentence, the district court and the Ninth Circuit applied “the modified categorical approach,” which applies to statutes that are “categorically broader than the generic offense” of burglary. Because documents showed that defendant’s § 459 conviction rested on a “generic” burglary, the district court and Ninth Circuit held that defendant’s sentence could be counted under the ACCA. Writing for seven justices, Justice Kagan reversed, holding that the modified categorical approach cannot be used to find that defendant’s prior conviction was a violent felony where the statute, such as § 459, contains a single, indivisible set of elements that do not constitute a violent felony. Instead, the modified categorical approach can be used only when a person can violate a statute in more than one way and supporting documents are necessary to determine whether the manner in which the person violated the statute constitutes a “violent felony.” Justice Thomas concurred in the judgment; Justice Alito dissented. Descamps v. U.S., __ U.S. __, 133 S.Ct. 2276 (2013).

Supreme Court says possession of 1.3 grams of marijuana is not an aggravated felony. (340) Under 8 U.S.C. § 1227(a)(2)(A)(iii), a defendant convicted of an “aggravated felony” must be deported. An “aggravated felony” includes any state law felony that would be punishable as felony drug trafficking under federal law. Defendant was convicted under Georgia law of possession with intent to distribute 1.3 grams of marijuana. In a 7-2 decision written by Justice Sotomayor, the Supreme Court held that if a noncitizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, it is not an aggravated felony. Justices Thomas and Alito dissented. Moncrieffe v. Holder, __ U.S. __. 133 S.Ct. 1678 (2013).

Supreme Court to decide if offense that would not be a federal felony can be an aggravated felony. (340) In a case from the Fifth Circuit, the Supreme Court granted certiorari to decide whether a conviction under a provision of state law that encompasses, but is not limited to, the distribution of a small amount of marijuana without remuneration constitutes an aggravated felony, even if the record of conviction does not establish that the alien was convicted of conduct that would constitute a federal felony. Moncrieffe v. Holder, 566 U.S. __, 132 S.Ct. 1857 (2012) (granting certiorari).

Supreme Court finds tax conviction with loss over $10,000 is aggravated felony. (340) An Immigration Judge ordered the removal of a Japanese resident alien couple, ruling that their convictions for filing a false tax return, 26 U.S.C. § 7206(1), involved fraud or deceit under 8 U.S.C. § 1101(a)(43)(M)(i) (Clause (i)), and thus were aggravated felonies under § 1227(a)(2) (A)(iii). In an opinion by Justice Thomas, the Supreme Court agreed—where the government’s revenue loss exceeds $10,000. Clause (i) is not limited to offenses that include fraud or deceit as formal elements. Rather, it refers to offenses involving fraud or deceit—meaning offenses with elements that necessarily entail fraudulent or deceitful conduct. Submitting a tax return that was false as to a material matter involved deceitful conduct. The sentencing guidelines’ separate treatment of tax crimes and crimes involving fraud and deceit did not show that Congress intended to include tax crimes within Clause (i). No evidence suggests that Congress considered the Guidelines when drafting 8 U.S.C. § 1101(a)(43)(M). Justice Ginsburg dissented, joined by Justices Breyer and Kagan. Kawashima v. Holder, __.U.S. __, 132 S.Ct. 1166 (2012).

Supreme Court holds that second drug possession offense is not aggravated felony. (340) Under 8 U.S.C. § 1101(a)(43)(B), an “aggravated felony” is defined in part to be a “drug-trafficking crime.” That term is defined in 18 U.S.C. § 924(c) to mean a “felony” punishable under the Controlled Substances Act. Simple possession of a controlled substance is usually a misdemeanor, but a conviction for a misdemeanor drug offense after a prior conviction under state law is “punishable” as a “felony” under § 924(c)(2). Defendant had two convictions under state law for misdemeanor drug offenses, but the state had not treated the second conviction as a felony. The Supreme Court held that second or subsequent simple possession offenses are not “aggravated felonies” under § 1101(a)(43) when, as in this case, the state conviction is not based on the fact of a prior conviction. Carachuri-Rosendo v. Holder, 560 U.S. 563, 130 S.Ct. 2577 (2010).

Supreme Court defines “violent felony” to mean offense involving “violent force.” (340) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), is subject to a mandatory minimum 15-year sentence if he has three prior convictions for a “violent felony.” That term is defined in part to mean a statute that “has an element the use…of physical force against the person of another.” The Supreme Court, in an opinion by Justice Scalia, held that the Florida felony offense of battery by “actually and intentionally touch[ing] another person,” in violation of Fla. Stat. § 784.03(1)(a), is not a “violent felony.” The Court explained that the ACCA’s use of the term “physical force” in its definition of “violent felony” means “violent force” or “force capable of causing physical or pain or injury to another person.” Justice Alito wrote a dissent, which Justice Thomas joined. Johnson v. U.S., 559 U.S. __, 130 S.Ct. 1265 (2010).

Supreme Court rejects categorical approach for deciding if fraud offense is aggravated felony. (340) An alien who sustains a conviction for an “aggravated felony” is subject to a deportation. Under 8 U.S.C. § 1101(a)(43)(M)(i), the term “aggravated felony” is defined to include an offense that “involves fraud or deceit in which the loss to the victim exceeds $10,000.” The Supreme Court, in a unanimous decision written by Justice Breyer, held that to satisfy this definition of “aggravated felony,” an offense need not require proof of the loss of $10,000 as an element of the offense. Instead of using the “categorical approach” to determine whether a fraud offense satisfies the definition of “aggravated felony” in this context, a court should look to the particular circumstances in which an offender committed the fraud to determine whether it resulted in a loss of more than $10,000. The Court noted that under 8 U.S.C. § 1326, a defendant who reenters the U.S. after deportation following conviction for an aggravated felony is subject to an enhanced sentence, and it acknowledged that its “circumstance-specific” approach “could create potential constitutional problems” if the government prosecuted an alien who had a prior fraud conviction under § 1326. The Court noted, however, that the government had conceded that in a prosecution under § 1326, the jury would have to find that defendant’s prior fraud conviction involved a loss of more than $10,000. Nijhawan v. Holder, 557 U.S. __, 129 S.Ct. 2294 (2009).

Supreme Court holds that failure to report to prison is not a violent felony. (340) Under the Armed Career Criminal Act, 18 U.S.C. 924(e), a defendant convicted of being a felon in possession of a firearm who has three prior convictions for a “violent felony or a serious drug offense” is subject to a mandatory minimum 15-year sentence. A “violent felony” is defined in part as an offense that “involves conduct that presents a serious potential risk of physical injury to another.” The Supreme Court, in an opinion by Justice Breyer, held that the Illinois felony of failing to report to a penal institution to serve a sentence is not a “violent felony” within the meaning of the ACCA. Justice Alito wrote an opinion concurring in the judgment in which he urged Congress to amend the ACCA to include a specific list of expressly defined crimes that support the ACCA’s sentencing enhancement. Chambers v. U.S., 555 U.S. 122, 129 S.Ct. 687 (2009).

Supreme Court holds that “maximum term” under ACCA is maximum set by recidivist provision. (340) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant convicted of possession of a firearm by a convicted felon is subject to a mandatory 15-year sentence if he has three prior convictions for a “violent felony” or a “serious drug offense.” A “serious drug offense” is defined in part to mean an offense for which “a maximum term of imprisonment of ten years is prescribed by law.” Defendant had three prior drug convictions in Washington. Under Washington law, a first drug offense was subject to a five-year maximum sentence, but second and subsequent convictions for drug offenses carried a 10-year maximum. The Ninth Circuit held that “the maximum term of imprisonment” must be determined without taking the recidivist enhancements into account. The Supreme Court, in an opinion by Justice Alito joined by five other justices, held that the “maximum term of imprisonment” for defendant’s state drug convictions was the 10-year maximum set by the state recidivist provision. U.S. v. Rodriquez, 553 U.S. 377, 128 S.Ct. 1783 (2008).

Supreme Court holds that felony DUI is not a violent felony. (340) The Armed Career Criminal Act, 18 U.S.C. § 924(e), provides that a defendant convicted of possession of a firearm by a convicted felon is subject to a mandatory 15-year sentence if he has three prior convictions for a “violent felony.” That term is defined to mean an offense that is “burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Defendant had 12 prior New Mexico convictions for driving under the influence of alcohol. Under New Mexico law, the fourth such conviction is a felony punishable by more than one year in prison. The Supreme Court held that New Mexico’s felony DUI law does not define a “violent felony” under the ACCA. In an opinion by Justice Breyer, the Court reasoned that even if felony DUI involves conduct that presents a serious risk of physical injury to others, it is too unlike the other crimes listed in the definition to qualify as a violent felony. Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008).

Supreme Court to decide if conspiracy to commit fraud is an aggravated felony. (340) Federal immigration law defines the term “aggravated felony” to mean, among other things, “an offense that involves fraud or deceit.” 8 U.S.C. §1101(a)(43)(M)(i). Defendant was convicted of conspiracy to commit bank, mail, and wire fraud, in violation of 18 U.S.C. §371. The Supreme Court granted certiorari to determine whether defendant’s offense constituted an “aggravated felony.” Nijhawan v. Mukasey, 555 U.S. __, 129 S.Ct. __ (Jan. 16, 2009) (granting certiorari).

Supreme Court to determine if driving while intoxicated is a “violent felony” under the ACCA. (340) Under the Armed Career Criminal Act, 18 U.S.C. § 924(e), a defendant convicted of being a felon in possession of a firearm is subject to a 15-year mandatory minimum sentence if he has three prior convictions for a “violent felony” or a drug-trafficking offense. The Supreme Court granted certiorari to determine whether driving while intoxicated is a “violent felony.” Begay v. U.S., 128 S.Ct. 32 (2007) (granting certiorari).

Supreme Court to determine if recidivist sentence satisfies ACCA definition of drug-trafficking offense. (340) The Armed Career Criminal Act, 18 U.S.C. § 924(e), provides for a 15-year mandatory sentence for defendants convicted of being a felon in possession of a firearm if the defendant has three prior convictions for, among other things, a state controlled substance offense “for which a maximum term of imprisonment of ten years or more is prescribed by law.” The Supreme Court granted certiorari to determine whether a state drug-trafficking offense, for which state law authorized a ten-year sentence because the defendant was a recidivist, qualifies as a predicate offense under the ACCA. U.S. v. Rodriquez, 128 S.Ct. 33, __ U.S. __, (2007) (granting certiorari).

Supreme Court clarifies categorical approach and holds that attempted burglary is a “violent felony” under ACCA. (340) The Armed Career Criminal Act, 18 U.S.C. § 924(e), defines the term “violent felony” to include a crime punishable by more than a year that is “burglary” or “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Under Florida law, attempted burglary requires proof of an “overt act directed toward entering or remaining in a structure or conveyance.” The Supreme Court held that attempted burglary under Florida law categorically qualifies as a “violent felony” because it poses a serious potential risk of physical injury to another. The Court held that the commission of an offense need not pose the requisite risk of physical injury in every case. Instead, the proper inquiry under the categorical approach is whether the conduct encompassed by the elements of the offense ordinarily presents a serious potential risk to another. James v. U.S., 550 U.S. 192, 127 S.Ct. 1586 (2007).

Supreme Court rules that state drug felony that is only a misdemeanor under federal law is not an “aggravated felony.” (340) The Immigration and Naturalization Act defines the term “aggravated felony” to include “illicit trafficking in a controlled substance.” An alien was convicted of aiding and abetting another person’s possession of cocaine under South Dakota state law. That offense is a felony under state law but would only be a misdemeanor under federal law. The Supreme Court held that a state drug felony that is only a misdemeanor under federal law is not an “aggravated felony” within the meaning of the immigration statute. Lopez v. Gonzalez, 127 S.Ct. 625 (2006).

Supreme Court justices debate need to overrule prior-conviction exception to Apprendi. (340) In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Court held that “other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” In dissenting from the denial of a petition for certiorari, two Supreme Court justices debated whether the prior-conviction exception to Apprendi – established in Almendarez-Torres v. U.S., 523 U.S. 224 (1998) – should be overruled. Justice Thomas argued that until Almendarez-Torres was overruled, “countless criminal defendants will be denied the full protection afforded by the Fifth and Sixth Amendments.” Justice Stevens agreed that Almendarez-Torres was “wrongly decided,” but argued that the prior-conviction exception “will seldom create any significant risk of prejudice to the accused” and that the “doctrine of stare decisis” provided a basis for maintaining the prior-conviction exception. Rangel-Reyes v. U.S., 547 U.S. __, 126 S.Ct. 2873 (2006) (denying certiorari).

Supreme Court to decide if attempted burglary is a violent felony. (340) The Armed Career Criminal Act, 18 U.S.C. § 924(e), mandates a 15-year minimum mandatory sentence for defendants convicted of possessing a firearm who have three prior convictions for a “violent felony.” Under the statute, burglary is a violent felony, and an attempt to commit an enumerated “violent felony” may also constitute a violent felony. The Supreme Court has granted certiorari to review an Eleventh Circuit decision holding that attempted burglary under Florida law is a “violent felony.” James v. U.S., __ U.S. __, 126 S.Ct. 2860 (2006) (granting certiorari).

Supreme Court limits evidence used to determine if prior conviction is “generic” felony. (340) The Armed Career Criminal Act, 18 U.S.C. § 924(e), mandates a 15-year minimum mandatory sentence for defendants convicted of possessing a firearm who have three prior convictions for serious felonies, including burglary. In Taylor v. U.S., 495 U.S. 575 (1990), the Court held that only “generic burglaries” qualified as predicate felonies under the ACCA and that in determining whether a defendant’s prior conviction was a generic burglary, a court could look to statutory elements, charging documents, and jury instructions. In a 5-3 decision, the Supreme Court held that a sentencing court may not look to police reports or complaint applications to determine whether a defendant’s earlier guilty plea showed that defendant committed a generic burglary. Instead, a court is limited to the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge. Shepard v. U.S., 544 U.S. 13, 125 S.Ct. 1254 (2005).

Justice Thomas argues that prior convictions should be subject to Apprendi. (340) In Apprendi v. New Jersey, 530 U.S. 466 (2000), the Supreme Court held that facts, other than prior convictions, that increase the defendant’s maximum sentence must be alleged in the indictment and proved to the jury beyond a reasonable doubt. In excepting prior convictions from the Apprendi rule, the Court preserved its ruling in Almendarez-Torres v. U.S., 523 U.S. 224 (1998). In a concurring opinion in a decision on the evidence necessary to establish that a prior offense qualifies as a predicate for an increased sentence under the Armed Career Criminal Act, Justice Thomas asserted that “a majority of the Court now recognizes that Almendarez-Torres was wrongly decided” and argued that it should be reconsidered. Shepard v. U.S., 544 U.S. 13, 125 S.Ct. 1254 (2005) (Thomas, J., concurring).

Supreme Court says that DUI causing serious bodily injury is not “crime of violence.” (340) Under 18 U.S.C. § 16, the term “crime of violence” is defined to include offenses that have as an element the use of physical force against the person or property of another or that involve a substantial risk that physical force may be used against the person or property of another in the course of committing the offense. Section 16’s definition of “crime of violence” is used to determine whether an alien has an “aggravated felony” under the immigration laws, including the ban on illegal reentry after deportation. Defendant was convicted under Florida law of driving while intoxicated and causing serious bodily injury in an accident. In a unanimous decision, the Supreme Court held that state DUI offenses that either lack a mens rea component or require only a showing of negligence in the operation of a vehicle are not crimes of violence under § 16. Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377 (2004).

Supreme Court vacates 9th Circuit’s ruling that lack of judicial review of deportation violates Suspension Clause. (340) The Illegal Immigration Reform and Immigration Responsibility Act of 1996 eliminated all forms of judicial review in immigration cases, including the remedy of habeas corpus. In a per curiam opinion, the Ninth Circuit Judges held that the act violated the Suspension Clause of the constitution, Article I, § 9, Clause 2, which provides that “the privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it.” Magana-Pizano v. INS, 152 F.3d 1213 (9th Cir. 1998). The INS sought review in the Supreme Court, and in a brief order, the Supreme Court granted review, vacated the Ninth Circuit’s opinion and remanded the case to the Ninth Circuit for reconsideration in light of the Supreme Court’s opinion in Reno v. American Arab Anti-Discrimination Committee, 525 U.S. 471, 119 S.Ct. 936 (1999), which held that the Act prohibits judicial review before a final deportation order. INS v. Magana-Pizano, 526 U.S. 1001, 119 S.Ct. 1137 (1999).

Supreme Court says prior felonies in deported alien statute are sentence enhancements, not a separate offense. (340) Subsection (a) of 8 U.S.C. § 1326 provides a maximum two year sentence if a deported alien returns to the United States without special permission. Subsection (b)(2) provides for a sentence of up to twenty years for “any alien described” in subsection (a), if the initial “deportation was subsequent to a conviction for commission of an aggravated felony.” In a 5-4 opinion written by Justice Breyer, the Supreme Court held that subsection (b)(2) does not describe a separate offense, but merely authorizes an enhanced sentence when an offender also has an earlier conviction for an aggravated felony. Thus, a defendant who was deported after conviction of an aggravated felony is subject to the twenty year maximum sentence even if the prior is not alleged or proved at trial. This opinion is in accord with every circuit except the Ninth Circuit’s opinion in U.S. v. Gonzalez-Medina, 976 F.2d 570, 572 (1992). Justice Scalia dissented at length, joined by Justices Stevens, Souter and Ginsburg. Almendarez-Torres v. U.S., 523 U.S. 224, 118 S.Ct. 1219 (1998)

1st Circuit upholds 16-level increase as not substantively unreasonable. (340) Defendant applied for a U.S. passport under an alias, using an expired passport and social security card that he purchased from another man. He was convicted of aggravated identity theft, and was sentenced to 70 months. The First Circuit rejected defendant’s argument that the 16-level enhancement for a prior drug trafficking conviction, § 2L1.2(b)(1)(A)(i), rendered his sentence substantively unreasonable. The district court concluded that the underlying 1991 conviction was not merely an aberration, but one of a lengthy list of convictions in defendant’s rather extensive criminal history. U.S. v. Ozuna-Cabrera, 663 F.3d 496 (1st Cir. 2011).

1st Circuit upholds decision to prosecute smuggling separately from harboring aliens. (340) In 2006, defendant was convicted of harboring five illegal aliens from Brazil. After his trial, but before sentencing, defendant was indicted in a new case for smuggling those same five aliens into the U.S. Defendant was sentenced to five years’ imprisonment for the first set of crimes in 2007. In 2010, he was convicted and sentenced to a mandatory minimum five years’ imprisonment on the smuggling counts under 8 U.S.C. § 1324(A)(2)(b)(iii). He argued that he should have been sentenced below the statutory minimum because the government’s decision to prosecute the smuggling counts under a separate indictment amounted to sentencing factor manipulation and “extraordinary misconduct.” The First Circuit rejected the argument, noting that the government had a number of reasons for the separate prosecutions. Moreover, it was not improper for the government to be concerned that defendant might receive too light a sentence in the first case. U.S. v. Neto, 659 F.3d 194 (1st Cir. 2011).

1st Circuit finds plain error in basing sentence on fact not supported by the record. (340) Defendant pled guilty to unlawfully entering the U.S. after previously being deported. The district court sentenced him at the high end of his advisory sentencing range, finding that in light of his prior convictions and his two illegal entries in a two-year period, deterrence was the “salient factor.” However, there was nothing in the record to support the court’s assertion that this was defendant’s second illegal entry into the United States. It appeared that prior to his deportation, defendant was legally in the U.S. The First Circuit held that the court plainly erred in basing defendant’s sentence on a fact not supported by the record. U.S. v. Gonzalez-Castillo, 562 F.3d 80 (1st Cir. 2009).

1st Circuit rules that resisting arrest was crime of violence. (340) Defendant was sentenced as a career offender based in part on his previous conviction for resisting arrest. The First Circuit upheld the district court’s finding that resisting arrest qualified as a crime of violence for career offender purposes. One section of the state statute defines the offense as “using or threatening to use physical force or violence against the police officer or another.” Mass. Gen Laws, ch. 268, §32B(1). This method of resisting arrest fits squarely within the definition of a crime of violence. The second method of resisting arrest involves “using any other means which creates a substantial risk of causing bodily injury to such police officer of another.” Mass. Gen Laws, ch. 268, §32B(2). Even after Begay, this second method of resisting arrest qualifies as a crime of violence under the so-called residual cause because it (a) poses a degree of risk roughly similar to the risk posed by the enumerated offenses, and (b) involves purposeful, violent and aggressive conduct. Stiffening one’s arm to avoid being handcuffed cannot be characterized as “non-violent,” or “non-aggressive.” U.S. v. Almenas, 553 F.3d 27 (1st Cir. 2009).

1st Circuit, en banc, requires categorical approach under residual clause to decide if non-residential burglary is crime of violence. (340) In U.S. v. Sawyer, 144 F.3d 191 (1st Cir. 1998), and U.S. v. Fiore, 983 F.2d 1 (1st Cir. 1992), the First Circuit held that a prior conviction for a burglary which is not of a dwelling is per se a “crime of violence'” under the Guidelines. Here, the First Circuit en banc reversed course and rejected the per se rule, holding instead that whether a prior conviction for non-residential burglary is a crime of violence turns on the application of a categorical approach under §4B1.2(a)(2)’s residual clause. In determining whether a prior offense is a violent felony under the ACCA, the Supreme Court has consistently adhered to a categorical approach. The en banc court believed that the Sentencing Commission intended this categorical approach be used in interpreting the career offender guideline, by using identical language to the ACCA in the residual clause and through its commentary. Moreover, other circuits uniformly apply a categorical approach when considering whether non-burglary crimes are included under §4B1.2(a)(2)’s residual clause. U.S. v. Giggey, 551 F.3d 27 (1st Cir. 2008) (en banc).

1st Circuit holds homicide by negligent operation of motor vehicle is not crime of violence. (340) The district court applied an enhanced offense level based on its finding that defendant’s prior Wisconsin conviction for motor vehicle homicide was a crime of violence under §4B1.2(a). The First Circuit found that under the Supreme Court’s recent decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), the offense did not qualify as a crime of violence. Under Begay, the crime at issue must be “roughly similar” in kind, as well as in degree of risk posed, to the crimes listed in the “otherwise” clause (burglary, arson, extortion or crimes involving use of explosives). Begay found that DUI was not a violent felony because it was too unlike the listed examples, even though it was roughly similar in degree of risk. Here, although vehicular homicide met the necessary degree of risk to be a crime of violence, it was not similar in kind to the enumerated offenses. Although it was violent, it was not necessarily aggressive or purposeful. Vehicular homicide involving criminal negligence does not involve the requisite purposeful, intentional or deliberate conduct to be a crime of violence. U.S. v. Herrick, 545 F.3d 53 (1st Cir. 2008).

1st Circuit allows absence of fast-track program to be considered at sentencing. (340) In U.S. v. Andujar-Arias, 507 F.3d 734 (1st Cir. 2007), the First Circuit held that sentencing disparity attributable to the selective use of so-called “fast-track” programs could not be the basis for a sentence variance. In light of the Supreme Court’s recent decisions in Gall v. U.S., 128 S. Ct. 586 (2007) and Kimbrough v. U.S., 128 S. Ct. 558 (2007), the First Circuit abrogated Andujar-Arias. Instead, it concluded that consideration of fast-track disparity is not categorically barred as a sentence-evaluating datum within the overall ambit of 18 U.S.C. § 3553(a). Under Kimbrough courts can vary from the advisory guidelines based on disagreement with the manner in which the guidelines operate. Of course, courts are not obligated to deviate from the guidelines based on these reasons. “[T]he district court can make its own independent determination as to whether or not a sentence tainted by the alleged disparity is nonetheless consistent with the centrifugal pull of the constellation of § 3553(a) factors.” U.S. v. Rodriguez, 527 F.3d 221 (1st Cir. 2008).

1st Circuit holds transporting minor for prostitution is categorically crime of violence. (340) Defendant was convicted of interstate transport of a minor for prostitution purposes, and sentenced as a career offender. The First Circuit affirmed, holding that the offense was categorically a “crime of violence” for career offender purposes. The fact that defendant himself was not involved in sexual contact with the minor did nothing to diminish the risk that force might be used. A prostituted child who is exploited in violation of § 2423(a) faces more and greater risks than does a seduced child. The Supreme Court’s recent decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (April 16, 2008), did not change this conclusion. Begay, which charted a new course in interpreting the violent felony definition under the ACCA, had to be considered because this circuit reads the ACCA and the almost identical language in the career offender guideline the same. Begay, which held that DUI is not a violent felony, directs a court to focus not only on the degree of risk of harm posed by a particular crime, but whether the crime involves “purposeful, violent, and aggressive conduct.” The panel acknowledged that the offense here was different from other crimes of violence in that the defendant himself was not necessarily the agent of violence. However, since the risk of harm is so substantial and so easily foreseen by the defendant, there was no basis for distinction. U.S. v. Williams, __ F.3d __ (1st Cir. May 7, 2008) No. 07-1354.

1st Circuit rules that defendant brandished knife at passengers being smuggled into U.S. (340) Defendant was a crew member on a 40-foot boat carrying 92 aliens that capsized off the coast of Puerto Rico. Seven passengers did not survive. He was convicted of alien smuggling charges. Defendant challenged a four-level enhancement under § 2L1.1(b)(4)(B) for brandishing a dangerous weapon. Defendant claimed that he used a “kitchen knife” (the government termed it a “machete”) merely to cut salami to distribute to the passengers during the trip. The First Circuit upheld the enhancement. There was evidence that defendant wielded the knife during a confrontation, telling passengers to “get down if you don’t want us to cut your neck.” Another witness said that defendant “pressured” the passengers to remain calm by “carrying a machete in his hand” in an aggressive manner. This conduct amounted to “brandishing” under Note 1(c) to § 1B1.1. U.S. v. Hilario-Hilario, 529 F.3d 65 (1st Cir. 2008).

1st Circuit holds that disparities caused by existence of fast-track program in other districts did not make sentence unreasonable. (340) Defendant claimed that his sentence for illegal reentry after deportation was unlawful because the district court refused to account for “unwarranted” sentence disparities, as required by 18 U.S.C. § 3553(a)(6). The unwarranted disparities he cited resulted from the operation of fast-track sentencing programs in other districts. The First Circuit held that the limited disparities arising from approved fast-track programs, using downward departures, as contemplated by Congress, are permissible. In addition, fast-track programs using charge-bargaining measures rather than downward departures are within the discretion of U.S. Attorneys, and have additionally been authorized by the Attorney General. Therefore, such disparities are “warranted” and may not be considered by a district judge in sentencing as a basis for a variance from the guidelines under § 3553(a)(6). U.S. v. Adujar-Arias, 507 F.3d 734 (1st Cir. 2007).

1st Circuit finds Massachusetts assault was crime of violence. (340) The district court applied a 16-level enhancement under § 2L1.2(B) (1) based on its finding that his assault conviction, under Mass. Gen Laws ch. 265, § 15A, was a crime of violence. The statute contained two subsections. Subsection (b) sets out punishment for anyone who “commits assault and battery upon another by means of a dangerous weapon.” Thus, the statutory definition “admits to no interpretation other than a crime that involves the use of physical force against another person.” The First Circuit ruled that the district court did not err in relying on the state statutory definition of the crime rather than the face of the complaint to make the crime of violence finding. Although the criminal complaint technically charged defendant with assault and battery with a dangerous weapon against the Commonwealth of Massachusetts, the sentencing court rejected the argument that the complaint did not properly charge defendant with a crime under § 15A(b). Since there is no indication that § 2L1.2 contemplates collateral attack, the panel would not question the state court’s conclusion that defendant was properly convicted under § 15A(b). U.S. v. Earle, 488 F.3d 537 (1st Cir. 2007).

1st Circuit holds that Puerto Rico aggravated battery conviction was not a felony for sentencing purposes. (340) Defendant pled guilty to unlawful reentry into the U.S. after deportation. The district court imposed a 16-level crime of violence enhancement under U.S.S.G. § 2L1.2(b) (1)(A)(ii) based on its finding that defendant’s prior conviction for aggravated battery constituted a felony. There was no dispute that the felony crime of aggravated battery, with which defendant was charged in 1989, would trigger the enhancement; the question was whether defendant was convicted of that crime. At sentencing, both defense counsel and the prosecutor agreed that the aggravated battery conviction should be considered a misdemeanor based on the six-month sentence that was imposed. The court, however, relying on the language of the complaint, concluded that defendant had been convicted of a felony. Relying on the six-month sentence imposed, the First Circuit held that the offense was not a felony. Under Puerto Rico law, a sentencing judge imposing a term of imprisonment for the felony crime of aggravated battery lacked the discretion to reduce the sentence below the statutory minimum of two years. Thus, the six-month sentence defendant received was “strong evidence” that defendant’s conviction was not for a felony. U.S. v. Simo-Lopez, 471 F.3d 249 (1st Cir. 2006).

1st Circuit holds that defendant waived argument that prior conviction was not felony drug trafficking offense. (340) Defendant pled guilty to illegally reentering the U.S. after deportation. He received a 16-level increase under § 2L1.2 for previously being deported after a conviction for a drug trafficking offense. Defendant argued for the first time on appeal that his prior drug conviction did not qualify as a drug trafficking offense. He did not object to the PSR’s guideline calculation containing the 16-level enhancement and did not raise this challenge in court. The First Circuit held that defendant waived his challenge, which precluded him from raising the challenge on appeal. Objections to the PSR must be filed within 14 days, and absent certain exceptions not applicable here, the affected party “waives any objection to the report by failing to comply with this rule.” Moreover, even if defendant merely forfeited his claim, so that it could be reviewed for plain error, he could not establish such plain error. U.S. v. Turbines-Leonardo, 468 F.3d 34 (1st Cir. 2006).

1st Circuit holds that variance to 8 times maximum guideline range was unreasonable. (340) Defendant was convicted of using a forged immigration document to try to enter the U.S. Although his guideline range was 0-6 months, the district court imposed a 48-month sentence. The First Circuit reversed, finding the court’s explanation for such a large variation to be inadequate. The fact that defendant had previously been deported from the U.S. was accounted for by the two-level enhancement in § 2L2.2(b)(1). The second factor cited by the court, defendant’s arrest in 1991 and the outstanding bench warrant, was also insufficient to support the increase. The guidelines contain a policy statement that permits a court to consider prior significant adult criminal not resulting in a criminal conviction, but prohibits courts from departing based solely on a defendant’s arrest record. U.S. v. Zapete-Garcia, 447 F.3d 57 (1st Cir. 2006).

1st Circuit holds that fast-track sentencing did not create implied delegation of power. (340) The Attorney General has authorized in certain jurisdictions “fast-track” procedures to speed criminal immigration cases through the system. Congress has directed the Sentencing Commission to provide for downward departure to defendants in such fast-track programs in exchange for their waiver of procedural rights. See § 5K3.1. The First Circuit rejected defendant’s argument that Congress delegated excessive legislative power to the Attorney General to decide when districts may install fast-track systems and when they may not. The court found no delegation at all, and therefore constitutional limits on Congress’s power to delegate could not have been transgressed. The panel also rejected defendant’s argument that the district judge at his sentencing felt constrained by the then-mandatory guidelines and did not have the opportunity to consider whether fast-track sentencing created “unwarranted sentence disparities.” However, defendant did not preserve a Booker issue, and therefore the review was for plain error. Defendant could not point to any “specific indicia” that the district court would have felt differently had it been operating under advisory guidelines, and the judge made comments suggesting that it would not have considered any fast-track disparities “unwarranted” even in an advisory guidelines regime. U.S. v. Martinez-Flores, 428 F.3d 22 (1st Cir. 2005).

1st Circuit holds that “sentence imposed” is not reduced by defendant’s parole. (340) Defendant was convicted of drug charges in New York, and received an indeterminate prison sentence of one to three years. He served less than a year of that sentence before being paroled into the custody of the INS for deportation. Section 2L1.2(b)(1)(A)(i) directs a court to apply a 16-level enhancement if the defendant previously was deported after a conviction for a drug-trafficking felony “for which the sentence imposed exceeded 13 months.” Defendant argued that because he served less than 13 months for his New York drug-trafficking felony, he should have only received a 12-level enhancement under § 2L1.2(b)(1)(B). The First Circuit found that the term “sentence imposed” means exactly that: the punishment meted out by the sentencing court. Application Note 1 did not conflict with this holding. It provides that if “all or any part of a sentence of imprisonment was probated, suspended, deferred, or stayed, ‘sentence imposed’ refers only to the portion that was not probated, suspended, deferred, or stayed.” These enumerated caveats – probation, suspension, deferral, and stay – “are all judicial options available at the moment of sentencing. Parole is a different animal entirely, heavily influenced by post-sentencing events and administered by the executive rather than the judicial branch.” U.S. v. Carrasco-Mateo, 389 F.3d 239 (1st Cir. 2004).

1st Circuit rejects increase based on aggravated felony conviction that occurred after deportation. (340) Defendant was deported from the U.S. in 1994 and again in 1999. In April 2000, he was convicted in Puerto Rico of an aggravated felony. After his release from custody in 2001, he was arrested for being an illegal alien “found in” the United States. Guideline § 2L1.2(b)(1)(C) provides for an 8-level enhancement if “the defendant previously was deported, or unlawfully remained in the United States, after … a conviction for an aggravated felony.” The First Circuit held that the aggravated felony enhancement does not apply to a defendant whose aggravated felony conviction occurred after his deportation. The plain language of § 2L1.2(b)(1) and its application notes suggests that the enhancement will apply, at most, to an alien who (a) commits an aggravated felony, (b) is then subject to an order of deportation or removal, and (c) does not depart but instead remains in the United States unlawfully. In contrast, defendant (1) was removed, (b) returned illegally, and (c) was convicted of an aggravated felony. U.S. v. Sanchez-Mota, 319 F.3d 1 (1st Cir. 2002).

1st Circuit holds that motive of returning to U.S. to care for daughter was equivalent to family ties and responsibilities. (340) Defendant was convicted of illegally reentering the U.S. after deportation. He argued that he should receive a downward departure because his motivation for returning, to care for his young daughter, took him out of the “heartland” of illegal reentry defendants. The First Circuit found that defendant’s claim was essentially based on factors accounted for in U.S.S.G. § 5H1.6, family ties and responsibilities. There is nothing in the text of § 5H1.6 stipulating that family ties and responsibilities is only a discouraged factor in assessing the consequences of a sentence and not in assessing the culpability for a crime. Therefore, the court did not reach the separate question of whether motivation as a separate category is ever a permissible ground for departure. The district court found that the facts of defendant’s family ties and responsibilities were not sufficiently exceptional to warrant a departure on this ground. Because the court did not misunderstand its legal authority to depart, but merely exercised its jurisdiction not to do so, the First Circuit lacked jurisdiction to review the court’s refusal to depart. U.S. v. Mejia, 309 F.3d 67 (1st Cir. 2002).

1st Circuit holds that Florida offense of lewd and lascivious assault on child was aggravated felony. (340) The district court found that defendant’s prior Florida conviction for lewd and lascivious assault on a child constituted an aggravated felony, and applied a 16-level enhancement under § 2L1.2(b)(1)(A). The definition of aggravated felony in 8 U.S.C. § 1101(a)(43) includes “murder, rape, or sexual abuse of a minor.” The First Circuit agreed that the lewd and lascivious assault constituted an aggravated felony. Even if the Florida statute, Fla. Stat. Ann. § 800.04, encompassed both predicate and nonpredicate offenses, the information against defendant contained factual details of the alleged crime, and established that defendant pled guilty to a § 800.04 violation that constituted sexual abuse of a minor. U.S. v. Londono-Quintero, 289 F.3d 147 (1st Cir. 2002).

1st Circuit holds that adverse consequences faced by deportable alien not grounds for departure from illegal reentry guideline. (340) Defendant was convicted of illegally reentering the U.S. after deportation, in violation of 8 U.S.C. § 1326. He sought a downward departure on the ground that, as a deportable alien, he would suffer certain adverse collateral consequences during his incarceration (e.g. ineligibility for minimum security prison camp and certain rehabilitative programs offered). The First Circuit held that the deportable alien status was not a ground for departure from § 2L1.2, the guideline applicable to illegal reentry cases. By definition, the only persons sentenced under that guideline will be deportable aliens. Therefore, the Sentencing Commission must have, in constructing the guideline, taken into account not only the immigration status of prospective offenders, but also the collateral consequences that would flow from that status within the federal prison system. U.S. v. Vasquez, 279 F.3d 77 (1st Cir. 2002).

1st Circuit holds that forgery conviction was aggravated felony. (340) In 1998, defendant stole a credit card and used it to pay for a rafting trip for himself and two friends. He pled guilty to forgery and was deported. He later reentered the U.S. without permission, was arrested, and pled guilty to reentering the U.S. after having been departed, 8 U.S.C. § 1326(b)(2). The First Circuit ruled that defendant’s forgery conviction constituted an aggravated felony under § 2L1.2(b) (1)(A) and 8 U.S.C. § 1101(a)(43). The definition in § 1101(a)(43) includes “an offense relating to … forgery … for which the term of imprisonment is at least one year….” State law categorized defendant’s forgery offense as a Class 5 felony, and the crime carried a maximum prison term of three years. Defendant’s actual sentence was one year. U.S. v. Johnstone, 251 F.3d 281 (1st Cir. 2001).

1st Circuit says possible vacation of prior “aggravated felony” was irrelevant. (340) Defendant pled guilty to illegally reentering the U.S., in violation of 8 U.S.C. § 1326(b)(2). He received a 16-level enhancement because his deportation occurred after his conviction for an aggravated felony, a 1998 Colorado forgery conviction. Defendant argued that the Colorado conviction was invalid due to ineffective assistance of counsel, and noted that he was currently challenging the conviction on these grounds. The First Circuit held that U.S. v. Luna-Diaz, 222 F.3d 1 (1st Cir. 2000) foreclosed this collateral attack on the state court conviction. Luna-Diaz held that the plain language of § 2L1.2(b)(1)(A) and 8 U.S.C. § 1101(a)(43) required the imposition of the 16-level enhancement based on even a vacated conviction for an aggravated felony. As long as the removal occurred after the conviction, a conviction that is later vacated can serve as an aggravated felony. The relevant time under the statute is the moment of removal. The future status of defendant’s forgery conviction was irrelevant. U.S. v. Johnstone, 251 F.3d 281 (1st Cir. 2001).

1st Circuit finds no Apprendi error where sentence did not exceed statutory maximum. (340) Defendant pled guilty to illegally reentering the U.S., in violation of 8 U.S.C. § 1326(b)(2). He received a 16-level enhancement because his deportation occurred after his conviction for an aggravated felony. He argued that the district court erred in not submitting the sentencing enhancement to a jury. See Apprendi v. New Jersey, 530 U.S. 466 (2000). However, no Apprendi error occurs when the district court sentences a defendant below the statutory maximum, even if a fact determined by the court under a preponderance standard lengthens the sentence imposed. Here, the applicable statute set forth a maximum sentence of 20 years for the unlawful reentry charge. The plea agreement and hearings made clear that defendant fully understood that he faced that maximum penalty. The actual sentence imposed by the district court, even with the enhancement, was 45 months. Accordingly, the First Circuit found no Apprendi error. U.S. v. Johnstone, 251 F.3d 281 (1st Cir. 2001).

1st Circuit says failure to meet note’s departure requirements did not limit court’s discretion to make other departure. (340) Defendants who re-enter the United States after being deported following an aggravated felony conviction are subject to a 16-level increase under USSG § 2L1.2(b)(1)(A). Application Note 5 authorizes a downward departure from the 16-level increase if the defendant meets three conditions: (1) he has only one prior felony conviction; (2) it was not for a crime of violence or a firearms offense; and (3) the term of imprisonment imposed did not exceed one year. Defendant did not meet the third condition because he was sentenced to more than a year for his aggravated felony conviction. The district court concluded that defendant’s failure to meet the application note’s departure requirements precluded it from making a criminal history departure. The First Circuit disagreed, holding that the prerequisites of note 5 govern only the decision to depart from the aggravated felony enhancement in calculating a defendant’s offense level. Nothing in that note limits a court’s discretion to make a criminal history departure. U.S. v. Delgado-Reyes, 245 F.3d 20 (1st Cir. 2001).

1st Circuit finds state court’s vacating of previous aggravated felony conviction irrelevant. (340) After being convicted of felony drug charges in Massachusetts, defendant was deported. He illegally reentered the country, and eventually plead guilty to illegally reentering the country after deportation. After obtaining a continuance of his federal sentencing, defendant brought a successful challenge in Massachusetts state court to his 1993 drug conviction. At sentencing on the federal charges, defendant claimed that a § 2L1.2(b) enhancement for reentering the country after deportation following an aggravated felony no longer applied because he had vacated his state drug conviction. The First Circuit found the subsequent vacation of the prior conviction irrelevant, holding that the relevant time for determining a felony’s status is the time of deportation, not the time of sentencing on the reentry offense. The plain language of the guideline and the statute, 8 U.S.C. § 1326(b), supports this interpretation, which is in accord with the only reported decision to address this issue. See U.S. v. Cisneros-Cabrera, 110 F.3d 746 (10th Cir. 1997). U.S. v. Luna-Diaz, 222 F.3d 1 (1st Cir. 2000).

1st Circuit says no “for profit” requirement in counting total number of aliens smuggled. (340) Defendants conspired to smuggle Chinese nationals into the US in a ship. Section 2L1.1(b)(2)(C) provides for a six-level increase if the offense involved smuggling 100 or more illegal aliens. Defendants argued that several of the ship passengers were participants and therefore should be excluded because they were not smuggled into the US “for profit.” The First Circuit held that the § 2L1.1(b)(2)(C) enhancement does not require that each of the 100 or more aliens be smuggled “for profit.” The “for profit” definition in note 1 refers to § 2L1.1(b)(1), which provides for a three-level decrease if the offense is committed other than “for profit.” This offense involved the transportation and planned offloading of 109 aliens, only four of whom were defendants. Whether the remaining 105 aliens were smuggled in exchange for payment, work aboard the ship, or nothing at all was irrelevant under § 2L1.1(b)(2)(C). U.S. v. Li, 206 F.3d 78 (1st Cir. 2000).

1st Circuit holds that defendants did not prove they did not commit smuggling solely for own transportation. (340) Defendants conspired to smuggle Chinese nationals into the US in a ship. Three defendant argued they should have received a § 2L1.1(b)(1) decrease for committing the offense “other than for profit.” They claimed that their only form of compensation was free passage to the US. Under note 1, a defendant who commits the offense solely in return for his own transportation did not commit the offense “for profit.” The district court found that the defendants were knowing participants in a conspiracy that was expected to yield profits to some members of the conspiracy. The district court denied the decrease based on an “expectation of payment” after their arrival in the US. Although a close question, the First Circuit ruled that defendants did not meet the burden of proving their entitlement to this reduction. None of three defendants offered testimony on this subject, and only one defendant offered an affidavit stating that he expected only free passage. After viewing and hearing all of the evidence, the district court simply did not believe that defendants had no expectation of payment. U.S. v. Li, 206 F.3d 78 (1st Cir. 2000).

1st Circuit says departure must be measured from greater of mandatory minimum or guideline range. (340) Defendants conspired to smuggle Chinese nationals into the US on a ship. All conspirators received upward departures under note 5 based on the inhumane and dangerous conditions on the ship. Defendants Li and Kwan complained that although they were the least culpable, they received disproportionately harsh departures. Li and Kwan each received sentences of 72 months, which corresponded to offense levels of 26 or 27. From this, they subtracted their total offense level of 14 to determine that they received an upward departure of 12-13 offense levels. By contrast, other conspirators received departures of only 9-10 levels. The First Circuit found this analysis flawed since defendants mistakenly used their total offense level as the starting point for calculating the departure, rather than the three-year mandatory minimum sentence under 8 U.S.C. § 1324(a)(2)(B)(ii). The proper starting point for a departure is the greater of the guideline range or the mandatory minimum. When defendant’s upward departures were measured from the 36-month mandatory minimum, it became apparent that they actually received smaller departures than other conspirators. U.S. v. Li, 206 F.3d 78 (1st Cir. 2000).

1st Circuit holds that boss of smuggling ship knew or could have foreseen inhumane conditions. (340) Defendants and others smuggled Chinese nationals into the US on a ship. Note 5 to § 2L1.1 permits an upward departure for an offense involving “dangerous or inhumane treatment.” The First Circuit affirmed an upward departure under note 5 since defendant either knew or could have foreseen the ship’s inhumane and dangerous conditions. The smuggling boat was at sea for 54 days. When the ship was boarded by the Coast Guard, defendant identified himself as the master of the ship. He was also called “boss” by others on the ship. It was unlikely that the ship’s boss would not know of or suspect the unsanitary conditions, safety violations, food deprivations, or incidents of violence during the nearly two-month voyage. Moreover, there was evidence that defendant directly abused the passengers. He personally beat one passenger with a thick wooden stick and kicked another as he lay on the deck. During the beating, another crew member told the victim that he was being beaten for stealing food or water. U.S. v. Li, 206 F.3d 78 (1st Cir. 2000).

1st Circuit holds that land-based defendants could have foreseen inhumane conditions on smuggling ship. (340) Defendants conspired to smuggle Chinese nationals into the US on a ship. Note 5 to § 2L1.1 permits an upward departure for an offense involving “dangerous or inhumane treatment.” The First Circuit affirmed a note 5 departure for three land-based defendants, ruling that even though they were not on the smuggling ship, they could have foreseen the crew’s actions and the ship’s conditions. Defendant Hui Lin was in charge of the stateside portion of the conspiracy. His concern with finances during negotiations with undercover officers suggested that he understood the need for frugality. He knew the offloading vessel was inadequate, but arranged for the aliens to be transported on that vessel anyway. In addition, Hui Lin knew that enforcers would control aliens on both the smuggling ship and the offloading vessel. Defendant Kwan was the one who initially approached undercover agents about bringing 100 aliens into the US. Kwan introduced the agents to Hui Lin, participated in all meetings with the agents, and negotiated the price. Defendant Li attended all but one of these meetings. Li gave the agent the ship’s coordinates and delivered the down payment. Both Li and Kwan were present when Hui Lin discussed the enforcers and stated that the aliens would have to cope with the lack of space by foregoing sleep for two days. U.S. v. Li, 206 F.3d 78 (1st Cir. 2000).

1st Circuit holds that counterfeiting enhancement not based solely on false documents actually produced. (340) Defendants pled guilty to six counts related to a conspiracy to produce and sell false Social Security and “green” cards. The district court increased by six levels under § 2L2.1(b)(2)(C) because there were 100 or more documents. Defendants argued that only a two-level increase was warranted because only six or seven counterfeit documents were complete. The First Circuit upheld the six-level increase based on documents defendants intended to produce. There was evidence that defendants had produced or intended to produce hundreds of counterfeit documents. Typewriter ribbons seized from defendant’s apartment showed the imprint of over 400 names and Social Security numbers. In addition, over 600 blank Social Security cards were seized from a third co-conspirator’s apartment. The district court properly considered this in determining how many documents were “involved” in defendants’ counterfeiting scheme. U.S. v. Viera, 149 F.3d 7 (1st Cir. 1998).

1st Circuit reaffirms that aggravated felony can include misdemeanor under federal law. (340) Defendant illegally reentered the country following deportation. The district court ruled that his prior Texas conviction for cocaine possession was an aggravated felony under § 2L1.2(b)(2) because it was a felony under Texas law. Defendant argued that the term “felony” as used in 18 U.S.C. § 924(c)(2) encompasses only offenses which would constitute felonies under federal law. The First Circuit found this argument was foreclosed by U.S. v. Restrepo-Aguilar, 74 F.3d 361 (1st Cir. 1996), which held that the term “felony” includes all state felonies even if the same conduct would be a misdemeanor under federal law. U.S. v. Clase-Espinal, 115 F.3d 1054 (1st Cir. 1997).

1st Circuit rejects stipulation to alienage and deportability as basis for departure. (340) Defendant unlawfully reentered the U.S. following deportation. The government agreed to recommend a downward departure under § 5K2.0 in return for a stipulation of alienage and deportability following his release from prison, as well as waiver of any deportation hearing. The district court ruled that it lacked authority to depart on this basis. On appeal, the First Circuit agreed, holding that a defendant’s stipulation and waiver relating to alienage and deportability do not provide grounds for a downward departure. The Sentencing Commission was fully aware that almost all criminal defendants convicted under 8 U.S.C. § 1326(a) and sentenced under § 2L1.2 would be subjected to deportation and that many undoubtedly would stipulate to deportation. In the absence of a colorable, nonfrivolous defense to deportation, a stipulation to deportation does not constitute a mitigating circumstance of a kind not adequately considered by the Sentencing Commission. U.S. v. Clase-Espinal, 115 F.3d 1054 (1st Cir. 1997).

1st Circuit rules delay in filing immigration case did not require departure. (340) Defendant illegally reentered the country after deportation following several drug offenses. After his reentry, he was arrested on state drug charges, and sentenced to 30 months in state prison. While serving his state sentence, the INS lodged a detainer against him and federal agents interviewed him. After his release, he was indicted on federal charges of illegally reentering the U.S. after deportation. The district court imposed a 70-month sentence. Defendant argued that the district court should have departed downward because § 5G1.3(c) would have provided for the federal sentence to run concurrently with the state sentence if he had been charged federally while still serving his state sentence. The First Circuit held that the district court properly understood its authority to depart. Although deliberate tampering to increase a sentence would be a concern, the ordinary accidents of acceleration or delay are part of the fabric of criminal proceedings. The court added however, that this did not mean that innocent delays can never be the basis for departure. U.S. v. Saldana, 109 F.3d 100 (1st Cir. 1997).

1st Circuit holds that definition of “conviction” is matter of federal, not state, law. (340) Defendant was convicted of being illegally present in the U.S. and received a 16-level enhancement under § 2L1.2(b)(2) because he was deported after conviction of an aggravated felony. Defendant argued that his 1986 drug offense was not a “conviction” under state law because he pled nolo contendere and was sentenced to probation. The First Circuit held that the definition of “conviction” under § 2L1.2(b)(2) is a matter of federal, not state law. Section 4A1.2(a)(4) provides that the phrase “convicted of an offense” means that the guilt of the defendant has been established by guilty plea, trial or plea of nolo contendere. A defendant’s nolo contendere plea on a drug charge followed by probation is a “conviction.” Finally, even if the 1986 disposition was not a conviction, defendant’s 1984 conviction for cocaine possession was for an aggravated felony, since it was a felony under state law. U.S. v. Cuevas, 75 F.3d 778 (1st Cir. 1996).

1st Circuit says alien who remained in U.S. after being put on probation violated § 1326. (340) In 1989, defendant was deported. In 1990, he illegally reentered the country. In 1994, he was put on probation for a state drug offense. While serving the probationary term, he was found in the U.S. by federal authorities. He pled guilty to illegally reentering or being found in the U.S. in violation of 8 U.S.C. § 1326. The district court added two criminal history points under § 4A1.1(d) for having committed the offense while on probation. Defendant contended that because he illegally reentered the U.S. in 1990, he could not have committed the offense while under his 1994 probationary sentence. The First Circuit held that defendant committed his § 1326 offense in 1995, when he was “found” in the U.S. A deported alien can violate § 1326 in three distinct ways. One of those ways is when he is “found” in the country. Defendant was unquestionably serving his probationary sentence for his 1994 drug conviction when he was “found” in the U.S. U.S. v. Cuevas, 75 F.3d 778 (1st Cir. 1996).

1st Circuit agrees that amount of bribes exceeded $10,000. (340) Defendant offered an undercover agent, posing as a corrupt INS inspector, $1,000 for each alien who was permitted to sneak into the U.S. from the Dominican Republic. The Second Circuit held that the amount of the bribes exceeded $10,000 under § 2C1.1(b)(2)(A). The sentencing court was permitted to consider both consummated and unconsummated bribes. The district court properly concluded that defendant had offered or given at least 12 bribes, each in the amount of $1,000. The court identified five aliens involved in the counts of conviction, plus at least seven more. Relevant conduct is not limited to the counts of conviction. The additional aliens, while not named in the indictment, were sufficiently proven by audiotapes of defendant’s conversations with the agent. Moreover, defendant was in the process of delivering a $2,000 bribe at his arrest, and had promised three more bribes in the future. U.S. v. Tejada-Beltran, 50 F.3d 105 (1st Cir. 1995).

1st Circuit applies amended immigration guideline where defendant was found in U.S. after effective date. (340) Defendant illegally reentered the U.S. after deportation, in violation of 8 U.S.C. § 1326. After defendant reentered the country, but before he was found and arrested, § 2L1.2(b)(2) was amended to increase the penalty for a conviction under § 1326 where deportation followed conviction for an aggravated felony. The 1st Circuit held that applying the amended guideline did not violate the ex post facto clause because defendant was “found” in the country after the effective date of the amended guideline. U.S. v. Rodriguez, 26 F.3d 4 (1st Cir. 1994).

1st Circuit says state drug possession convictions were aggravated felonies. (340) Guideline § 2L1.2(b)(2) and 8 U.S.C. § 1326(b)(2) provide an enhanced penalty for deported aliens who illegally reenter the United States following conviction for an aggravated felony. Defendant argued that his Massachusetts drug convictions for possession with intent to distribute were not aggravated felonies because they were not drug “trafficking” crimes. The 1st Circuit held that defendant’s state convictions were trafficking crimes for purposes of section 1326 because they were punishable under the Controlled Substances Act, 21 U.S.C. § 844(a). U.S. v. Rodriguez, 26 F.3d 4 (1st Cir. 1994).

1st Circuit upholds large departure in alien smuggling case for dangerous conditions, use of a gun, and passengers’ deaths. (340) Defendant pled guilty to charges stemming from two separate boat trips to smuggle aliens into the United States. On one trip, defendant forced his passengers at gunpoint into the water 100 yards from shore, and two women drowned. The district court, citing the dangerous conditions, defendant’s use of a gun and the deaths, departed upward and imposed a five year sentence for one count, and a consecutive four year sentence for the other. The 1st Circuit affirmed. The district court was entitled to depart under § 2L1.1, application note 8, based solely on the dangerous conditions created by an inadequately equipped vessel. It was also clearly permissible to treat as an aggravating factor the fact that defendant had forced passengers into the water resulting in two deaths. The judge’s findings were supported by the evidence. There was no inconsistency between the probation officer’s finding that defendant did not anticipate the death of any of his passengers and the judge’s use of the word “murder” to describe the incident. U.S. v. Hernandez-Coplin, 24 F.3d 312 (1st Cir. 1994).

1st Circuit says INS representations did not estop court from increasing defendant’s sentence. (340) When defendant was deported, INS officials warned him that if he returned to the U.S., he would be subject to up to two years’ imprisonment. The statute was later amended to enhance the penalty from two to 15 years. The 1st Circuit held that the representations made by INS officials did not estop the district court from sentencing defendant to more than two years. Defendant did not satisfy the threshold elements for estoppel. He could not show that a government official erroneously advised him that the particular act for which he was convicted was actually legal at the time it was committed. He also could not show that he relied upon a material misrepresentation, since the information given to him was correct at the time it was given. Applying the amended statute did not violate the ex post facto clause. His offense occurred on the date he was found in the U.S., which was well after the date the statute was amended. U.S. v. Troncoso, 23 F.3d 612 (1st Cir. 1994).

1st Circuit says indictment need not allege prior felony for enhancement for reentering U.S. (340) Defendant was convicted of unlawful reentry following deportation, in violation of 8 U.S.C. § 1326(b). He argued that the government’s failure to allege the prior aggravated felony in the indictment meant that he only be sentenced for violating section 1326(a). The 1st Circuit disagreed, holding that section 1326(b) should be construed as a sentence enhancement provision, rather than a separate offense. Therefore the indictment was not required to alleged defendant’s prior felony conviction. U.S. v. Forbes, 16 F.3d 1294 (1st Cir. 1994).

1st Circuit holds that New York drug offense was aggravated felony. (340) Defendant was convicted of unlawful reentry following deportation. Section 2L1.2(b)(2) provides for a 16-level enhancement if the defendant previously was deported after conviction for an aggravated felony. The 1st Circuit held that defendant’s New York offense, Criminal Possession of a Controlled Substance in the Fourth Degree, constituted an aggravated felony. Defendant’s previous drug offense changed the maximum penalty for this offense from one to two years, and thus transformed it into a felony. Because defendant’s conviction was a felony punishable by one of the statutes enumerated in 18 U.S.C. section 924(c)(2), it qualified as an aggravated felony under section 2L1.2. U.S. v. Forbes, 16 F.3d 1294 (1st Cir. 1994).

1st Circuit finds erroneous advice on penalty for returning to U.S. no basis for downward departure. (340) Defendant pled guilty to unlawfully reentering the U.S. following deportation. He requested a downward departure because the INS erroneously informed him that the maximum penalty he would face if he returned to the country was two years, instead of the correct penalty of 15 years. Defendant claimed that relied upon this when he decided to return to the U.S., and had he known of the higher penalty he would face, he would not have returned. The 1st Circuit rejected this as grounds for a downward departure. Defendant’s contention ran counter to a primary purpose of the sentencing system, which was to deter criminal conduct. The guidelines were established, in part, to create penalties which were high enough to discourage people from committing a particular crime. U.S. v. Smith, 14 F.3d 662 (1st Cir. 1994).

1st Circuit approves double counting where same factor represents different considerations. (340) Defendant was convicted of illegally being in the United States after previously being deported for committing an aggravated felony. He contended that his prior aggravated felony was improperly counted both in his criminal history score and in determining his offense level under section 2L1.2(b). The 1st Circuit affirmed. Note 5 to section 2L1.2 provides that an offense level increase for a prior felony conviction under section 2L1.2(b) applies in addition to any criminal history points added for such conviction. To the extent the same factor reflects both the seriousness of an offense and the likelihood of a particular defendant’s recidivism, it may be considered twice in sentencing, for the separate purposes of punishment and deterrence. U.S. v. Zapata, 1 F.3d 46 (1st Cir. 1993).

1st Circuit finds defendant did not smuggle aliens other than for profit. (340) Defendant was the captain of a boat carrying 104 aliens illegally into the United States. He contended that he should have received a reduction under section 2L1.1(b)(1), which is applicable if the defendant committed the offense other than for profit. The 1st Circuit affirmed that defendant did not prove his entitlement this reduction. In his attempt to convince the court of his acceptance of responsibility, defendant admitted making three such trips and stated “I have done it for money.” Moreover, an INS agent testified that it was the established practice of the organization to collect payment directly from the alien passengers and to pay the captain for each trip. An ongoing INS investigation revealed that defendant was one of the main captains for the organization and had been previously arrested under similar circumstances. U.S. v. Trinidad-Lopez, 979 F.2d 249 (1st Cir. 1992).

1st Circuit affirms upward departure for number of aliens on dangerous journey. (340) Defendant was the captain of a boat carrying 104 aliens illegally into the United States. The 1st Circuit affirmed an upward departure based on the large number of aliens, the dangerousness of the journey and the underrepresentation of defendant’s criminal history, as evidenced by his prior arrest for similar conduct. Application note 8 to section 2L1.1 plainly states that offenses involving a large number of aliens or dangerous or inhumane treatment may justify an upward departure. There is no question that transporting 104 aliens in a boat designed to carry a maximum of 15 passengers, without food, life jackets, navigational equipment or charts, constituted dangerous and inhumane treatment. Defendant’s prior arrest, weeks before the instant offense after landing 93 aliens, was evidence that a criminal history category of I underrepresented the magnitude of his criminal actions. The extent of the departure, from 10 months to a sentence of 24 months, was reasonable. U.S. v. Trinidad-Lopez, 979 F.2d 249 (1st Cir. 1992).

1st Circuit affirms upward departure for alien smuggling even though one ground was improper. (340) Defendant pled guilty to entering the U.S. after deportation. Six months earlier he had been arrested and deported for a similar illegal entry. On both occasions, he was smuggling illegal aliens. The 1st Circuit affirmed an upward departure, even though it found one of the grounds relied upon was improper. It was proper for the court to base its departure on the uncharged alien smuggling offense, since it was related to the offense of conviction. The court could also properly rely on defendant’s previous uncharged alien smuggling activity, which endangered the safety of others. Finally, the recency of the prior offense could be an indicator of recidivism, which can justify a departure. But it was improper for the district court also to rely on defendant’s prior uncharged illegal entry, because that was an essential element of the instant offense. Nevertheless, the appellate court did not remand the case, because it was convinced that the district court would impose the same sentence on remand. U.S. v. Figaro, 935 F.2d 4 (1st Cir. 1991).

1st Circuit affirms upward departure where guidelines did not reflect increased penalties under statute. (340) Defendant was convicted of being a deported alien unlawfully in the United States. The statute had recently been amended to increase the maximum penalty from two to five years. However, the guidelines lagged behind, not incorporating these changes until the November 1989 amendments. Defendant was sentenced under the 1987 version of the guidelines. The 1st Circuit upheld the district court’s departure based on the lag time between the statutory amendments and the corresponding update of the guidelines, finding that the Sentencing Commission could not have considered the increased penalties when formulating the 1987 guidelines. The 1st Circuit also found it was proper for the district court to determine the scope of the departure using the amended version of the guidelines as a guide. “In the relatively rare situation presented here, where the defendant committed an offense after the applicable statute was amended but before the corresponding guideline had been revised to reflect the change, resort to the eventual guideline revision for guidance appears to be a sensible, fair-minded approach.” U.S. v. Aymelek, 926 F.2d 64 (1st Cir. 1991).

1st Circuit reverses upward departure where defendant was not responsible for method of transporting aliens. (340) Defendant pled guilty to bringing illegal aliens into the U.S. The district court departed upward from seven months to 15 months based on the “dangerous” and “inhumane” manner in which the aliens were transported– 54 persons jammed into a 34-foot yawl. The court noted that the boat was “unseaworthy” and that “more [often] than not these trips don’t make it in full. Half of the people get drowned.” The 1st Circuit reversed, noting that despite the danger, there was no evidence that the conditions were inhumane, that the vessel was unseaworthy, or that on these trips, “half the people get drowned.” Moreover, it was unreasonable “to punish defendant for a condition over which he had no control and to which he did not contribute.” Defendant had started out as a passenger but was hired to help operate the boat when the owner learned he had experience. U.S. v. Trinidad De La Rosa, 916 F.2d 27 (1st Cir. 1990), superseded on other grounds by guideline as stated in U.S. v. Reyes, 927 F.2d 48 (1st Cir. 1991).

1st Circuit agrees that defendant who assisted in smuggling aliens was not a minor nor a minimal participant. (340) Defendant was a passenger on a boat smuggling illegal aliens into Puerto Rico. The owner of the vessel then hired defendant to assist in operating the boat under the owner’s supervision. When the boat landed in Puerto Rico, defendant remained aboard to make one more smuggling trip, after which he would have remained in Puerto Rico. The probation officer recommended that defendant’s sentence be decreased by three levels for being more than a minimal but less than minor participant. The the district court refused to follow the recommendation, and the 1st Circuit found no plain error. The court noted that the defendant took an active role in the smuggling operation by operating the vessel. U.S. v. Trinidad De La Rosa, 916 F.2d 27 (1st Cir. 1990), superseded on other grounds by guideline as stated in U.S. v. Reyes, 927 F.2d 48 (1st Cir. 1991).

2nd Circuit allows court to decline to depart after government’s § 5K3.1 motion. (340) Defendant pled guilty to illegal reentry into the United States. The government moved, pursuant to its fast-track program, for a four-level downward departure, but the district court denied the motion. Defendant argued on appeal that § 5K3.1 requires district courts to depart pursuant to an appropriate government motion. The Second Circuit disagreed. The plain text of § 5K3.1 states that upon motion of the government, the court “may” depart downward under a fast-track program. The permissive “may” foreclosed defendant’s argument that the court “must” depart downward when the government makes a motion. U.S. v. Shand, 739 F.3d 714 (2d Cir. 2014).

2nd Circuit says statistical summary was insufficient to determine that additional immigration documents were false. (340) Defendant, formerly an immigration lawyer, was convicted of visa fraud and conspiracy to commit visa fraud. He received a nine-level enhancement for an offense involving 100 or more fraudulent documents. § 2L2.1(b)(2)(C). The only evidence of the number of false documents was an immigration officer’s statistical summary of 175 of defendant’s cases. The Second Circuit ruled that the statistics were not sufficient to support the enhancement. The officer’s report demonstrated striking similarities between the four applications presented at trial, and these four applications were all found by the jury to be false. However, the government did not present any evidence that these four applications were a representative slice of the 175 applications. The four applications were not randomly selected, but were, most likely, the most egregious cases. There was no evidence on whether any of the other 171 applications were also false, or were sufficiently similar to the other four applications that their falsity could be reasonably inferred. The court could not assume that because the defendant was convicted of filing false applications, that all of the applications were false. U.S. v. Archer, 671 F.3d 149 (2d Cir. 2011).

2nd Circuit upholds validity of 16-level enhancement. (340) Defendant pled guilty to illegally reentering the country after deportation following commission of an aggravated felony. He argued that the 16-level enhancement under § 2L1.2 based on his prior conviction was deficient because the Sentencing Commission arrived at it without reference to specific empirical data. He cited Kimbrough and the Second Circuit’s recent decision in U.S. v. Dorvee, 616 F.3d 174 (2d Cir. 2010). The Second Circuit rejected defendant’s challenge. The absence of empirical support was not the relevant flaw it identified in Dorvee. The Dorvee court criticized the child porn Guideline because Congress ignored the Sentencing Commission and directly amended the Guidelines. There was no such flaw in the reentry Guidelines. Congress did not bypass the usual procedure for amending the Guidelines with respect to illegal reentry cases. The 16-level enhancement was based on the Commission’s own determination “that these increased offense levels are appropriate to reflect the serious nature of these offenses.” The panel also rejected defendant’s argument that the 16-level enhancement was unduly harsh. U.S. v. Perez-Frias, 636 F.3d 39 (2d Cir. 2011).

2nd Circuit rules burglary was not crime of violence under immigration guideline, despite career offender guideline. (340) Defendant received a 16-level crime of violence enhancement under the immigration guideline, §2L1.2, based on a prior New York burglary conviction. In U.S. v. Brown, 514 F.3d 256 (2d Cir. 2008), the Second Circuit held that a conviction under the same New York burglary statute, N.Y. Penal Law § 140.20, did not constitute the enumerated offense of “burglary of a dwelling” under the career offender guideline, §4B1.2, because the statute applied to structures other than “dwellings,” but nevertheless ruled that § 140.20 was a crime of violence under § 4B1.2(a)’s residual clause, because it “otherwise involve[d] conduct that presents a serious potential risk of physical injury to another.” The Second Circuit found that it was bound by Brown’s holding that § 140.20 did not constitute a “burglary of a dwelling” for crime of violence purposes. However, it was not bound by the ruling under § 4B1.2(a)’s residual clause. Here, the term “crime of violence” was defined by § 2L1.2, not § 4B1.2(a). Section 2L1.2’s residual clause defines a crime of violence as any crime that has as an element the use, attempted use, or threatened use of force. The New York statute did not have force as an element., and thus, it was not a crime of violence under § 2L1.2. U.S. v. Folkes, 622 F.3d 152 (2d Cir. 2010).

2nd Circuit says challenge to 16-level increase in immigration case was frivolous. (340) Defendant pled guilty to illegally reentering the U.S. after having been deported, in violation of 8 U.S.C. § 1326(a)(1). On appeal, he argued that the district court committed procedural error by failing to adequately consider and respond to his arguments that the 16-level enhancement he received for a prior crime of violence reflected an unsound judgment, and was not derived from any empirical data. The Second Circuit found that defendant’s argument was totally unsupported by relevant law and thus, was frivolous. The court has never required a district court to make specific responses to all points argued by counsel. There was no error, much less plain error. U.S. v. Bonilla, 618 F.3d 102 (2d Cir. 2010).

2nd Circuit rules New York second-degree weapon possession was not a “categorical” crime of violence. (340) Defendant pled guilty to illegally reentering the U.S. after deportation for an aggravated felony, in violation of 8 U.S.C. § 1326. He had previously been convicted in state court of violating N.Y. Penal Law § 265.03, for possessing a loaded firearm and four rounds of ammunition. The Second Circuit held that the New York firearm possession offense was not a “categorical” crime of violence, and the district court plainly erred in applying a 16-level enhancement under § 2L1.2(b)(1)(A)(ii). The offense does not include as an element any actual, attempted or threatened use of physical force against another person, and the fact that defendant actually used the firearm to shoot two persons was irrelevant. The error was plain—settled law required the sentencing court to take a categorical approach in determining whether a prior conviction is a crime of violence for purposes of a sentencing enhancement, except in “a narrow range of cases” where a jury was actually required to find all the elements of an offense. U.S. v. Gamez, 577 F.3d 394 (2d Cir. 2009).

2nd Circuit says second simple possession offense was not aggravated felony. (340) Defendant received an eight-level increase under § 2L1.2(b)(1)(C) for a prior aggravated felony, based on two prior convictions for simple possession of a controlled substance. An aggravated felony is defined to include “any felony punishable under the Controlled Substances Act.” The district court ruled that defendant’s second possession offense was an aggravated felony because it could have been prosecuted as a recidivist felony under the CSA. However, in Alsol v. Mukasey, 548 F.3d 207 (2d Cir. 2008), the Second Circuit held that a second simple-possession offense cannot be treated as a recidivist felony under the CSA unless the offense was prosecuted as a recidivist offense under state law. Although Alsol was confined to the immigration context, the Sentencing Guidelines specify that the term “aggravated felony” in § 2L1.2(b)(1)(C) “has the meaning given that term in section 101(a)(43) of the Immigration and Nationality Act.” See Note 3(A) to § 2L1.2. The Second Circuit found that Alsol controlled, and the court erred in treating the second possession offense as an aggravated felony. U.S. v. Ayon-Robles, 557 F.3d 110 (2d Cir. 2009).

2nd Circuit holds that prior burglary and attempted burglary were crimes of violence. (340) In three separate cases, the district court held that a prior conviction for burglary in the third degree under New York law, or a prior conviction for attempted burglary in the third degree under New York law, were not convictions for “crimes of violence” as defined in USSG §4B1.2(a). After briefs were filed in this case, the Second Circuit held that New York’s offense of burglary in the third degree is a crime of violence. See U.S. v. Brown, 514 F.3d 256 (2d Cir. 2008). The only difference between Brown and these cases is that these cases also involved attempted burglary in the third degree. The Second Circuit ruled that this distinction did not help defendants, and the district court erred in finding that defendants’ convictions for burglary and attempted burglary were not convictions for crimes of violence. The Guidelines explicitly state that the term “crime of violence” includes the offense of “attempting to commit” a crime of violence. U.S. v. Hurell, 555 F.3d 122 (2d Cir. 2009).

2nd Circuit says sentence disparity from fast-track programs did not make sentence unreasonable. (340) Defendant was convicted of entering the U.S. after being deported following a conviction for an aggravated felony. At sentencing, he requested a below-guideline sentence based on the unwarranted sentencing disparities caused by the existence of fast-track programs in some districts but not others. In U.S. v. Mejia, 461 F.3d 158 (2d Cir. 2006), the Second Circuit held that sentencing disparities created by the fact that some, but not all, districts use fast-track programs did not render the sentences in non-fast-track districts necessarily unreasonable. Here, the Second Circuit confirmed that he absence of a fast-track program did not require the court to adjust the sentence. The judge said that he did not find the fast-track arguments “to be persuasive”—he did not say that they were foreclosed by Mejia. As a result, the sentencing decision was an unreviewable exercise of the judge’s discretion not to depart from the guidelines. There was no error. U.S. v. Hendry, 522 F.3d 239 (2d Cir. 2008).

2nd Circuit finds attempted burglary in third degree was violent felony. (340) Defendant received the statutory minimum of 15 years’ imprisonment under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based on three prior violent felony convictions. The Second Circuit held that defendant’s New York offense of attempted burglary in the third degree qualified as a violent felony. In U.S. v. Andrello, 9 F.3d 247 (2d Cir. 1993), the court held that the crime of attempted burglary in the third degree under New York Law, the same crime at issue here, constituted a violent felony because it fell under the ACCA’s residual or “otherwise” clause. The Supreme Court’s recent decision in James v. U.S., 127 S. Ct. 1586 (2007), holding that attempted burglary under Florida law is a violent felony under the ACCA, confirmed that Andrello was correctly decided. U.S. v. Lynch, 518 F.3d 164 (2d Cir. 2008).

2nd Circuit says court is not required to depart for fast-track departures in other districts. (340) Defendant argued that the existence of “fast-track” departures, available to those sentenced in some federal districts, but not the Southern District of New York, created an unwarranted sentencing disparity. The Second Circuit disagreed. In U.S. v. Mejia, 461 F.3d 158 (2d Cir. 2006), the court held that a district court’s refusal to adjust a sentence to compensate for the absence of a fast-track program did not make a sentence unreasonable. Its recent decision in U.S. v. Liriano-Blanco, 510 F.3d 168 (2d Cir. 2007) had no relevance to this appeal, since there was no indication that the district court wished to depart downward based on the availability of fast-track departures in other districts. U.S. v. Ramirez-Sucar, 517 F.3d 69 (2d Cir. 2008).

2nd Circuit holds that burglary in the third degree was crime of violence. (340) Defendant received an enhanced offense level under § 2K2.1 based on the court’s finding that his prior New York conviction for burglary in the third degree was a crime of violence. Defendant argued that the offense was for burglary of a “building” rather than a dwelling, and thus did not qualify as a crime of violence. The Fifth Circuit ruled that the district court did not err, finding that the residual “otherwise involves” clause at the end of § 4B1.2(a)’s definition of a crime of violence includes burglary of a building that is not a dwelling. The panel examined (a) the residual clause at the end of § 4B1.2(a)(2); (b) the identically worded residual clause in 18 U.S.C. § 924(e)’s definition of “violent felony”; (c) the interpretation of § 924(e) by the Supreme Court in Taylor v. U. S., 495 U.S. 575 (1990) and its own opinion in U.S. v. Andrello, 9 F.3d 247 (5th Cir. 1993), with respect to the nature of burglaries; (d) the court’s parallel constructions of § 4B1.2(a)’s concept of “crime of violence” and § 924(e)’s concept of “violent felony” in analyzing non-burglary felonies; and (e) the absence of a relevant statement by the Sentencing Commission interpreting § 4B1.2(a)’s residual clause. U.S. v. Brown, 514 F.3d 256 (2d Cir. 2008).

2nd Circuit says criminal possession of a weapon in second degree was a violent felony. (340) Defendant received the statutory minimum of 15 years’ imprisonment under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based on three prior violent felony convictions. The Second Circuit held that defendant’s New York offense of criminal possession of a weapon in the second degree qualified as a violent felony. Defendant claimed that he never admitted to having “intent to use the weapon unlawfully against another,” and that his conviction was based on “mere possession.” However, the essential elements of the crime of conviction are “knowing and unlawful possession” of a loaded weapon and “the intent to use it unlawfully against another.” It is beyond questions that possessing a weapon with intent to use it unlawfully against another involves conduct “that presents a serious potential risk of physical injury to another.” U.S. v. Lynch, 518 F.3d 164 (2d Cir. 2008).

2nd Circuit holds that disparity between defendant’s sentence and sentences received in fast-track jurisdiction did not make it unreasonable. (340) Defendant pled guilty in the Southern District of New York to illegal reentry after deportation. This district does not use a “fast-track” or “early disposition” program. Defendant argued that the district court erred in declining to reduce his sentence to account for the lesser-sentence he presumably would have received in one of the district courts that use a fast-track program, and that the disparity resulted in an unreasonable sentence. The Second Circuit disagreed. Defendant’s argument rested in a false equivalence between defendants in fast-track jurisdictions who receive a benefit in exchange for the acceptance of certain detriments and a defendant in his position, who claimed the benefit without suffering the detriment. Although defendant did not have the opportunity to make the bargain, by the same token, the bargain was not made and no sentencing principle required the sentencing court to mimic the transaction or compensate for its unavailability. Legislative history confirms that departures pursuant to fast-track programs were intentionally limited to authorized programs. The Sentencing Commission has rejected compensatory downward departure as a remedy for the disparity. The sentencing imposed was reasonable, even though defendant might have been treated more favorably in other jurisdictions. U.S. v. Mejia, 461 F.3d 158 (2d Cir. 2006).

2nd Circuit holds that defendant was linked to office location where 27 false identifications were found. (340) Defendant and various associates assisted illegal immigrants with fraudulently obtaining North Carolina driver’s licenses. During part of the scheme, he worked with a partner, who operated out of an office in Brooklyn, New York. The Second Circuit affirmed a six-level increase under § 2L2.1(b)(2) for an offense involving between 25 and 99 fraudulent identification documents, finding sufficient evidence to link defendant to 27 federal tax identification cards found in his partner’s Brooklyn. Although there was no evidence that defendant was ever physically present at the address, there was more than sufficient evidence connecting him as a part of the illegal operation located there. For example, in a number of recorded phone calls the partner repeatedly referred to defendant as his partner. When one illegal immigrant telephoned defendant telling him that he had been referred to defendant by his partner, defendant welcomed the call and proceeded to make arrangements for the immigrant to obtain a North Carolina driver’s license. Other evidence included (a) the close to daily phone calls from defendant to the partner, the Brooklyn office, and another conspirator, (b) the computer hard disk discovered at the office containing defendant’s name and office address, and (c) the North Carolina DMV manuals discovered at the Brooklyn office, which were the manuals defendant gave to his clients. U.S. v. Proshin, 438 F.3d 235 (2d Cir. 2006).

2nd Circuit holds that sentence of “time served” was “sentence imposed” of more than 13 months. (340) In 2000, defendant was convicted of drug charges and sentenced to 30 months’ imprisonment. The government later moved for a sentence reduction under Rule 35(b), and defendant was resentenced to “time served.” At the time of resentencing, defendant had actually spent about 21 months in custody. Shortly after his release, he was deported, and in 2004 pled guilty to illegal reentry into the U.S. after deportation. The district court applied a 16-level enhancement under § 2L1.2(b)(1)(A) because the “sentence imposed” for defendant’s prior drug trafficking offense “exceeded 13 months.” Defendant argued that a sentence of “time served” is not a “sentence imposed” because the sentencing judge did not specifically articulate a number to which “time served” refers. The Second Circuit disagreed, holding that a sentence of “time served” was an unambiguous pronouncement of a specific term of imprisonment – the amount of time actually served. The fact that the exact amount of time serve might be fortuitous was beside the point. U.S. v. D’Oliveira, 402 F.3d 130 (2d Cir. 2005).

2nd Circuit applies aggravated felony increase based on sentence imposed after deportation. (340) In 2000, defendant was convicted of drug charges. While on parole, he was deported to the Dominican Republic, illegally reentered the U.S., and was later arrested and convicted of additional drug charges. Due in part to this conviction, defendant’s parole was revoked and he was sentenced to 29 months’ imprisonment. The Second Circuit held that the 29-month prison term imposed after defendant’s deportation qualified as a “sentence imposed” for a drug trafficking offense. Therefore, defendant properly received a 16-level enhancement under § 2L1.2(b)(1)(A). The fact that the 29-month term was imposed after rather than before deportation and illegal reentry did not avoid application of that guideline. The determinative factor was defendant’s felony drug conviction before deportation. An amended sentence, whenever imposed, relates back to this conviction. U.S. v. Compres-Paulino, 393 F.3d 116 (2d Cir. 2004).

2nd Circuit applies recent statutory definition to determine that attempted murder was aggravated felony. (340) Defendant was convicted of being an alien found in the U.S. without permission after deportation, in violation of 8 U.S.C. § 1326. He argued that the district court should not have treated his prior conviction for attempted murder as an aggravated felony for sentencing purposes because attempted murder was not an aggravated felony under the relevant immigration statute at the time he was convicted of attempted murder. However, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) provides that its definition of aggravated felony will apply regardless of when the felony conviction in question was entered. 8 U.S.C. § 1101(a)(43). Because defendant was found in the U.S. after the September 30, 1996 effective date of IIRIRA, that statute’s definition of aggravated felony applied. Under these provisions, defendant’s conviction for attempted murder, for which he was sentenced to 30-90 months, was an aggravated felony. U.S. v. Morgan, 380 F.3d 698 (2d Cir. 2004).

2nd Circuit says court erred in departing without making finding on defendant’s motive for reentry. (340) Defendant was convicted of illegally reentering the country after deportation. He moved for a downward departure in part based on the fact that he reentered the U.S. illegally due to fear for his life and physical safety in El Salvador. Although the district court found nothing in the record to corroborate defendant’s claim, the court nonetheless cited this ground in departing downward. The Second Circuit found that the district court did not make sufficient findings to support a departure. The court made statements such as “I’m not passing judgment on the truth of what he claims [were] the circumstances down there;” and “I’m not gonna decide, as a question of fact, whether what he said in those affidavits is correct. I recognize that he may very well be contriving to stay in the United States,” and “I don’t think it’s appropriate for me to resolve credibility issues at this juncture … I have not made a finding, in the final analysis, that … the facts [are exactly] as he asserts them…” The district court was presented with two opposing sets of statements from the defendant regarding his motive for reentry, and it had an obligation to determine which statements were truthful based on defendant’s alleged personal safety motive. U.S. v. Leiva-Deras, 359 F.3d 183 (2d Cir. 2004).

2nd Circuit rejects departure where judge believed probation revocation sentence should not count in “sentence imposed.” (340) Guideline § 2L1.2(b)(1)(A)(i) requires a 16-level increase if the defendant reentered the U.S. after a conviction for a felony that is a drug trafficking offense for which the sentence imposed exceeded 13 months. In U.S. v. Huerta-Moran, 352 F.3d 766 (2d Cir. 2004), the court held that “a probation revocation sentence that, by itself, is longer than 13 months qualifies as a ‘sentence imposed’ for a ‘drug trafficking offense’ under § 2L1.2(b)(1)(A)(i).” In this case, defendant’s original sentence of three years probation with the first 180 days to be spent in jail was imposed for the sale of marijuana, a drug trafficking offense. Since defendant’s original sentence was a drug trafficking offense, the four-year term of imprisonment imposed upon revocation of defendant’s probation qualified as a “sentence imposed for a drug trafficking offense.” Therefore, the Second Circuit ruled that it was error for the sentencing court to depart downward on the grounds that the probation revocation sentence should not be included in the “sentence imposed” for a drug trafficking offense. U.S. v. Leiva-Deras, 359 F.3d 183 (2d Cir. 2004).

2nd Circuit rejects downward departure based on nature of prior drug trafficking felony. (340) Defendant, convicted of illegally reentering the country after deportation, received a 16-level enhancement under § 2L1.2(b)(1)(A)(i) based on a prior felony drug trafficking conviction for which the sentence imposed was greater than 13 months. During sentencing, the court stated that treating all trafficking offenses equally was illogical, and that it did not believe that selling $10 worth of marijuana supported a 16-level increase. It justified a downward departure in part based on the Sentencing Commission’s failure to adequately take into account the minor nature of certain drug trafficking crimes. The Second Circuit noted that in U.S. v. Stultz, 356 F.3d 261 (2d Cir. 2004), argued on the same day as this case, it held that the Sentencing Commission took the severity of the underlying felony into account when creating the graduated system of felonies in the 2001 amendments to U.S.S.G. § 2L1.2. Thus, a downward departure based on the nature of the prior drug trafficking felony is improper. U.S. v. Leiva-Deras, 359 F.3d 183 (2d Cir. 2004).

2nd Circuit says marijuana offense was within heartland of offenses for 16-level increase. (340) Defendant pled guilty to illegally reentering the country after deportation. The court applied a 16-level enhancement under § 2L1.2(b)(1)(A)(i) based on a prior conviction for trafficking in marijuana. Apparently believing that marijuana offenses are less serious than other drug offenses, the court departed downward five levels on the ground that the prior conviction was 16 years old and involved the sale of marijuana. The Second Circuit reversed, holding that the court erred when it decided that the Sentencing Commission had not taken into account the severity of prior drug offenses involving marijuana. Whether marijuana deserves to be treated comparably to other drugs for purposes of this enhancement has been considered by the Commission, and hence may not serve as a grounds for departure. Moreover, the period of time between the two offenses was not a proper ground for departure. U.S. v. Stultz, 356 F.3d 261 (2d Cir. 2004).

2nd Circuit finds probation revocation sentence greater than 13 months was “sentence imposed” for drug trafficking offense. (340) In 1993, defendant was convicted in California of drug charges and sentenced to 150 days’ imprisonment and three years of probation. On two separate occasions, he violated his probation and was sentenced to 182 days and two years’ imprisonment, respectively. He was deported, and illegally reentered the country. Guideline § 2L1.2 (b)(1)(A)(i) provides for a 16-level enhancement for a defendant who illegally reentered the country after deportation following conviction for a drug trafficking felony “for which the sentence imposed exceeded 13 months.” Drug trafficking felonies “for which the sentence imposed was 13 months or less” give rise to a 12-level enhancement. U.S.S.G. § 2L1.2(b)(1)(B). The term “sentence imposed” refers only to the portion of a sentence of imprisonment “that was not probated, suspended, deferred, or stayed.” Note 1(A)(iv) to § 2L1.1. The Second Circuit upheld the 16-level enhancement, holding that a sentence imposed upon revocation of probation that was, by itself, longer than 13 months, could be considered a “sentence imposed” on a drug-trafficking offense. Under the law of this circuit, any punishment assessed for a violation of probation is actually imposed for the underlying conviction. The court did not address whether a 13-month sentence could be reached by aggregating a series of sentences for the original crimes and for probation violations. U.S. v. Huerta-Moran, 352 F.3d 766 (2d Cir. 2003).

2nd Circuit holds that use of 2001 guidelines did not violate Ex Post Facto Clause. (340) Defendant pled guilty to illegally reentering the country after deportation. He argued for the first time in his replay brief that the court should not have used the 2001 guidelines in effect at the time of his sentencing, but rather, should have used the 1998 version in effect at the time of his offense. He claimed that he would have received a lesser sentence under the 1998 guidelines because the enhancement for his armed robbery conviction would have only been four levels, rather than 16 levels. The Second Circuit held that the use of the 2001 guidelines did not violate the Ex Post Facto Clause, and therefore, the court correctly applied the guidelines in effect at the time of sentencing. Defendant ignored the fact that he had multiple convictions, any one of which would qualify as an aggravated felony under the 1998 version of § 2L1.2(b)(1)(A). Thus, he still would have received a 16-level increase under the 1998 guidelines. U.S. v. Reinoso, 350 F.3d 51 (2d Cir. 2003).

2nd Circuit says conviction vacated by youthful offender adjudication still counted as crime of violence conviction. (340) Defendant pled guilty to illegally reentered the U.S. after being deported following a conviction for an aggravated felony. The district court found that defendant’s conviction for second-degree armed robbery constituted a conviction for a “crime of violence” that mandated a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Defendant argued that his youthful offender adjudication precluded a finding that his armed robbery resulted in a “conviction” under § 2L1.2(b)(1)(A). The Second Circuit found this argument precluded by U.S. v. Driskell, 277 F.3d 150 (2d Cir. 2002), which held that a youthful offender adjudication remains a conviction in substance, regardless of its characterization under New York law. Section § 2L1.2 requires only that the defendant have a conviction for a crime of violence in order to warrant the 16-level increase. Defendant’s subsequent youthful offender adjudication did not expunge his conviction, or otherwise absolve him of criminal responsibility for the armed robbery. Although Driskell determined a defendant’s criminal history category, rather than his base offense level, there was no principled reason to distinguish between them. U.S. v. Reinoso, 350 F.3d 51 (2d Cir. 2003).

2nd Circuit holds that drug possession convictions were aggravated felonies under 2001 amendments. (340) In U.S. v. Pornes-Garcia, 171 F.3d 142 (2d Cir. 1999), the Second Circuit held that a state felony conviction for simple drug possession constituted an aggravated felony under U.S.S.G. § 2L1.2(b)(1), the guideline that identifies specific offense characteristic enhancements for violations of 8 U.S.C. § 1326 (unlawful reentry after deportation). Here, the Second Circuit reached the same conclusion in construing the November 2001 amendments to that guideline. New Application Note 1 to § 2L1.2 makes plain that felony convictions for simple possession of drugs are not “felony drug trafficking offenses” subject to the 16-level enhancement provided in subsection (b)(1)(A) or the 12-level enhancement provided in subsection (b)(1)(B). However, Application Note 2 retains the pre-amendment reference to 8 U.S.C. § 1101(a)(43) for the definition of the term “aggravated felony.” A state felony conviction for drug possession qualifies as an “aggravated felony” under 8 U.S.C. § 1101(a)(43) by virtue of being a “drug trafficking crime” under 18 U.S.C. § 924(c)(2). Thus, it is subject to the 8-level enhancement provided in subsection (b)(1)(C). There is no conflict between the statutory definition of “aggravated felony” references in Note 2 and the express provisions of § 2L1.2(b)(1) that makes it impossible to apply the former without violating the latter. The terms “drug trafficking crime” and “drug trafficking offense” need not be synonymous. U.S. v. Ramirez, 344 F.3d 247 (2d Cir. 2003).

2nd Circuit holds that non-custodial monetary fine was sentence of 13 months or less. (340) In 1998, defendant was convicted in state court of selling marijuana and was sentenced to pay a $2500 fine. He was deported and later pled guilty to re-entering the country illegally after deportation. Section 2L1.2(b)(1)(B), as amended November 2001, provides for a 12-level enhancement if the defendant was deported following a conviction for “a felony drug trafficking offense for which the sentence imposed was 13 months or less.” Defendant argued that his drug conviction was not a proper basis for applying the 12-level increase because a non-custodial monetary fine does not constitute a sentence of “13 months or less.” The Second Circuit disagreed, and affirmed the 12-level increase. Zero is clearly a number “less” than 13, and a conviction resulting in a non-custodial, zero-month sentence is therefore included in the plain meaning of the guideline. U.S. v. Mullings, 330 F.3d 123 (2d Cir. 2003).

2nd Circuit holds that conviction for communications in aid of drug conspiracy was “drug trafficking offense.” (340) Defendant pled guilty to illegally reentering the U.S. after having been deported as a result of the commission of an aggravated felony. 8 U.S.C. § 1326(a). The Second Circuit ruled that defendant’s prior conviction under 21 U.S.C. § 843(b) for communications he made in the aid of a conspiracy to distribute cocaine was a “drug trafficking offense” under § 2L1.2, and therefore, he deserved a 16-level increase aggravated felony increase. U.S. v. Duarte, 327 F.3d 206 (2d Cir. 2003).

2nd Circuit says multiple documents must be used by individual for single purpose to constitute single document. (340) Defendant was convicted of attempted possession of five or more false identification documents. Guideline § 2L2.1 provides for enhancements based on the number of documents involved in the offense. Note 2 provides that “[w]here it is established that multiple documents are part of a set of documents intended for use by a single person, treat the set as one document.” The district court found that more than 25 documents were involved based on 14 fraudulent passports and 20 completed visa lottery applications that were multiple entries for three or four individuals. Defendant argued that because the 20 duplicative lottery applications were intended for use by only three or four people, they should be counted as only three or four documents. However, the district court interpreted the note as applying to a set of documents that would be used together by one person for a single purpose. The Second Circuit agreed with this interpretation. An individual may have a set of fraudulent immigration papers for use in establishing a particular false identify in the U.S. These multiple documents count as only one document even if used many times by one individual, because the number of documents in each set is unrelated to the number of false identity scams. In contrast, under defendant’s interpretation, an individual who forges one phony passport to create a false identity for himself is subject to the same sentence as an individual who commits 100 separate scams, each requiring a different passport. U.S. v. Badmus, 325 F.3d 133 (2d Cir. 2003).

2nd Circuit holds that state misdemeanors punishable as felonies under federal law were aggravated felonies. (340) On four occasions, defendant pled guilty to either the Criminal Sale or Possession of Marijuana in the Fourth Degree, both misdemeanors under New York State law. After the fourth of these convictions, defendant was deported. He returned to the U.S. and was convicted of illegally reentering the country after deportation. The 2001 version of § 2L1.2 provides for an eight-level enhancement where a defendant convicted of illegal reentry has previously been convicted of an “aggravated felony.” § 2L1.2(b)(1)(C). An “aggravated felony” consists of “illicit trafficking in a controlled substance … including a drug trafficking crime (as defined in section 924(c) of Title 18).” See 8 U.S.C. § 1101(a)(43(B). A “drug trafficking crime” is “any felony punishable under the Controlled Substances Act.” 18 U.S.C. § 924. The crimes for which defendant was charged under New York law were also punishable under federal law as felonies. For example, under the CSA the sale of marijuana is a felony offense that carries a maximum of five years’ imprisonment. See 21 U.S.C. 841(b)(1)(D). Because defendant’s New York misdemeanor drug trafficking convictions were punishable as felonies under the CSA, the Second Circuit held that they were “aggravated felonies” under the sentencing guidelines. U.S. v. Simpson, 319 F.3d 81 (2d Cir. 2002).

2nd Circuit says defendant bore burden of showing that prior sentence was subject to exception. (340) Defendant pled guilty to unlawfully reentering the U.S. after having been deported, in violation of 8 U.S.C. § 1326. The district court applied a 16-level enhancement under § 2L1.2 based on a prior 10-year sentence for delivery of a controlled substance. Defendant argued that because he was released from prison five months into his sentence and deported, his prior sentence should be viewed as a sentence of less than 13 months, and therefore he was subject to only a 12-level upward adjustment. See U.S.S.G. § 2L1.2(b)(1)(B). However, defendant produced no evidence that any part of his 1988 sentence was probated, suspended, deferred or stayed. The government showed the fact of his prior conviction and sentence using a Certificate of Conviction from the relevant court. The Second Circuit held that defendant did not meet his burden of proving his prior sentence was probated or suspended. Generally, the government bears the burden of proving facts relevant to sentencing. However, because defendant was seeking an exception to a guideline enhancement that the government had proven was prima facie applicable, he bore at least the burden of production, if not the burden of persuasion, to show that his prior ten-year sentence, established by official court documents to have been imposed, was subject to one of the exceptions that would qualify him for a lesser enhancement. U.S. v. Valdovinos-Soloache, 309 F.3d 91 (2d Cir. 2002).

2nd Circuit considers sentence imposed after probation revocation for aggravated felony purposes. (340) In 1992, defendant pled guilty in New York to attempted burglary in the third degree and received a sentence of six months of incarceration plus five years of probation. He violated his probation, and was resentenced to a one-year jail term. After serving this jail term, he was deported and later illegally reentered the US. The district court found that the attempted burglary was an aggravated felony and assessed an eight-level enhancement under USSG § 2L1.2(b)(1)(C). “Aggravated felony” is defined in 8 U.S.C. § 1101(a)(43) to include a burglary or attempted burglary for which the term of imprisonment is at least one year. The Second Circuit held that the imposition of a sentence of imprisonment following revocation of probation is a modification of the original sentence, and must be considered part of the “actual sentence imposed” for the original offense. Defendant’s term of incarceration for his prior conviction totaled 18 months, consequently, it met the definition of an aggravated felony, and the district court correctly assessed the aggravated felony increase. U.S. v. Hidalgo-Macias, 300 F.3d 281 (2d Cir. 2002).

2nd Circuit says use of aggravated felony not charged in indictment did not entitle defendant to withdraw plea. (340) Defendant was charged with and pled guilty to illegally reentering the US after deportation “subsequent to a conviction for the commission of an aggravated felony,” a 1984 robbery conviction in New York. In fact, the robbery was not an aggravated felony under applicable law. Nonetheless, the district court applied the aggravated felony enhancement under 8 U.S.C. § 1326(b)(2) and USSG § 2L1.2(b) based on a 1988 federal drug conviction. Defendant argued on appeal that he did not know that the government could “substitute” another prior aggravated felony conviction at the time of sentencing, and thus, his plea was not knowing and voluntary. The Second Circuit found no error. To the extent defendant was arguing that the court should have allowed him to withdraw his guilty plea, there was no error, since defendant never moved to withdraw his plea on those grounds. His arguments below regarding the indictment error were focused solely on obtaining a reduced sentence. Moreover, his claim was without merit. Although he was not specifically advised that the court could “substitute” a different aggravated felony, he was advised that the guidelines required the court to take any criminal history of his into account at sentencing. U.S. v. Mercedes, 287 F.3d 47 (2d Cir. 2002).

2nd Circuit upholds sentence enhancement based on aggravated felony not charged in indictment. (340) Defendant was charged with and pled guilty to illegally reentering the US after deportation “subsequent to a conviction for the commission of an aggravated felony,” a 1984 robbery conviction in New York, in violation of 8 U.S.C. § 1326(a), (b)(2). In fact, the robbery conviction was not an aggravated felony under applicable law. Nonetheless, the district court applied the aggravated felony enhancement under § 1326(b)(2) and USSG § 2L1.2(b) based on a 1988 federal drug conviction. The Second Circuit held that the use of an aggravated felony not charged in the indictment was proper. In Almendarez-Torres v. U.S., 523 U.S. 224 (1998), the Supreme Court held that subsection (b) of § 1326 was a penalty provision which “simply authorizes a court to increase the sentence for a recidivist” and did not define a separate crime.” Therefore, neither the statute nor the constitution requires the government to charge the prior conviction in the indictment. Almendarez-Torres was not overruled by Apprendi v. New Jersey, 530 U.S. 466 (2000). U.S. v. Mercedes, 287 F.3d 47 (2d Cir. 2002).

2nd Circuit holds that attempted robbery in the third degree was aggravated felony. (340) Defendant, convicted of illegally reentering the country after deportation, argued that the district court erred in finding that his New York state conviction for attempted robbery in the third degree met the definition of “aggravated felony” under § 2L1.2(b)(1)(A). The New York statute states that a person is guilty of attempt to commit a crime “when, with intent to commit a crime, he engaged in conduct which tends to effect the commission of such crime.” N.Y. Penal Law 110.00. New York courts have held that a defendant is guilty of attempt if he “carr[ied] the project forward within dangerous proximity to the criminal end to be attained.” People v. Werblow, 241 N.Y. 55 (1925). Federal criminal law requires that in order for a defendant to be guilty of attempt, he must take a “substantial step” toward the commission of the offense with the intent to commit the crime. The Second Circuit found the difference between the federal law’s requirement of a “substantial step” and the New York law’s requirement of “dangerous proximity” was “more semantic than real.” Thus, the district did not err in ruling that defendant’s conviction for attempted robbery in the third degree constituted an aggravated felony. U.S. v. Fernandez-Antonia, 278 F.3d 150 (2d Cir. 2002).

2nd Circuit says deportation does not automatically terminate a parole or special parole term. (340) In 1987, defendant was sentenced to 180 months’ imprisonment followed by a lifetime special parole term. After serving his term of imprisonment, defendant was deported. In 1997, he was arrested in New York and pled guilty to illegally reentering the U.S., in violation of 8 U.S.C. § 1326. The district court added two criminal history points under § 4A1.1(d), finding that defendant was serving a special parole term at the time of his offense. Defendant argued that his special parole term terminated upon his deportation. The Second Circuit disagreed, holding that deportation does not automatically terminate a parole or special parole term. Other circuits have concluded that a term of supervised release does not automatically terminate when an alien is deported. See U.S. v. Akinyemi, 108 F.3d 777 (7th Cir. 1997); U.S. v. Brown, 54 F.3d 234 (5th Cir. 1995). These holdings were based on language in 18 U.S.C. § 3583(d) that expressly permits, as a condition of supervised release, that defendant be deported. Although Congress did not expressly authorize courts to require an alien be deported as a condition of special parole, the version of 8 U.S.C. § 1252(h) in effect when defendant committed his offense and when he was deported expressly permits the deportation of aliens serving terms of “parole” – which includes both parole and special parole terms. Thus, parole and special parole terms survive deportation. U.S. v. Cuero Flores, 276 F.3d 113 (2d Cir. 2002).

2nd Circuit holds that 1996 burglary constituted aggravated felony. (340) Defendant received a 16-level increase under § 2L1.2(b)(1) (A) for reentering the U.S. after being deported following conviction of an aggravated felony. He challenged the treatment of his 1987 burglary offense as an aggravated felony, pointing out that burglary was not included in the definition of an aggravated felony until 1996. Effective September 1996, the term “aggravated felony” in 8 U.S.C. § 1101(a)(43) was expanded to include theft and burglary offenses for which the term of imprisonment was at least one year. In addition, a sentence was added to 8 U.S.C. § 1101(a)(43) stating that the new definition was to be used “regardless of whether the conviction” for the offense included in the definition “was entered before, on, or after” the September 1996 effective date. Accordingly, the Second Circuit held that the district court properly treated defendant’s 1996 burglary offense as an aggravated felony. The cases relied upon by defendant, U.S. v. Westcott, 966 F.Supp. 186 (S.D.N.Y. 1997), and St. Cyr v. U.S., 229 F.3d 406 (2d Cir. 2000), involved a different aggravated-felony definition and a different Congressional statement as to retrospective effect. U.S. v. Luna-Reynoso, 258 F.3d 111 (2d Cir. 2001).

2nd Circuit rules aggravated felony increase does not fully take into account conviction that triggered the increase. (340) Defendant illegally re-entered the country, and received a 16-level enhancement under § 2L1.2(b)(1)(A) because his deportation followed a conviction for an aggravated felony. The district court ordered his sentence to run consecutively to a state sentence imposed because defendant’s illegal re-entry also violated his parole for a prior drug crime. Guideline § 5G1.3(b) provides for concurrent sentences if “the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense.” The Second Circuit ruled that the time defendant spent in state custody for the parole violation was the “result” of the offense for which he was originally convicted in state court, and was not properly attributable to the conduct that violated the terms of his release on parole. Thus, § 5G1.3(b) applied only if defendant’s state drug conviction was “fully taken into account in the determination of the offense level” for his illegal re-entry sentence. The § 2L1.2(b)(1)(A) aggravated felony enhancement did not fully take into account the prior conviction that triggered that enhancement. Section 5G1.3(b) is aimed at avoiding cases in which conduct is the basis both for sentencing defendant as if that conduct had been part of the offense of conviction, and for additional punishment in a separate criminal proceeding. Here, the guideline did not treat defendant’s prior drug conviction as if it had been prosecuted in the present proceeding. U.S. v. Garcia-Hernandez, 237 F.3d 105 (2d Cir. 2000).

2nd Circuit holds that 15-year limit in definition of aggravated felony applies only to foreign convictions. (340) Defendant illegally reentered the country, and received an enhanced sentence because he was deported following conviction for an aggravated felony. See USSG § 2L1.2. He contended that the district court committed plain error by sentencing him under the 1998 version of the guidelines, which contained an expanded definition of an aggravated felony, rather than the 1995 version, which did not. The Second Circuit found no plain error, because at least one of defendant’s prior convictions constituted an aggravated felony under the 1995 guidelines. Application Note 7 to the 1995 version of § 2L1.2 defined an aggravated felony to include “any crime of violence … for which the term of imprisonment imposed … is at least five years … The term ‘aggravated felony’ applies to offenses described in the previous sentence whether in violation of federal or state law and also applies to offenses described in the previous sentence in violation of foreign law for which the term of imprisonment was completed within the previous 15 years.” The fact that defendant’s imprisonment for his two 1977 state robbery convictions ended in 1980 and thus had not been “completed within the previous 15 years” did not mean these robberies were not aggravated felonies. The 15 year-limitation contained in Note 7 applies to foreign convictions, not domestic convictions. U.S. v. Gitten, 231 F.3d 77 (2d Cir. 2000).

2nd Circuit uses guideline identical to provision in effect when defendant was “found in” country. (340) In June 1991, when defendant illegally reentered the country, § 2L1.2 provided for a base offense level of 8 and a four-level enhancement if “the defendant previously was deported after sustaining a conviction for a felony….” Application Note 3 suggested that an upward departure might be warranted if the conviction was for “an aggravated felony. Effective November 1, 1991, a new provision was enacted to require a 16-level enhancement if “the defendant previously was deported after a conviction for an aggravated felony….” This version was in effect in 1995 when defendant was “found in” in the U.S., and identical language was contained in the guidelines at the time of defendant’s sentencing under the 1998 guidelines. The Second Circuit held that the use of the 1998 guidelines did not violate the ex post facto clause, since they were no more stringent than the 1994 provision in effect when defendant’s offense was complete. U.S. v. Amezquito Acevedo, 229 F.3d 350 (2d Cir. 2000).

2nd Circuit affirms departure to statutory maximum to leader of inhumane smuggling venture. (340) Defendant orchestrated and financed the transportation of 300 Chinese nationals to the U.S. from Kenya in a cargo ship under extraordinarily inhumane conditions. The ship was deliberately grounded at 3 a.m. off the coast of New York. In the ensuing pandemonium, at least ten people died of hypothermia or drowning. On his conviction for seaman’s manslaughter, the district court departed upward from 33 months to the maximum ten-year sentence. The court’s stated reasons for the departure included all four factors identified in note 5 to § 2L1.1: dangerous or inhumane treatment, death of at least six individuals and the bodily injury of many others, the involvement of substantially more than 100 aliens, and possession of a dangerous weapon. The Second Circuit affirmed the departure, finding all of the district court’s reasons valid. Defendant admitted three of the four facts on which the departure was based. The district court did not err by failing to proceed step-by-step through every possible sentence before sentencing defendant to the statutory maximum. Such a step-by-step procedure is not necessary for offense level departures. The district court considered the fact that defendant was the leader of this inhumane venture, the person who orchestrated and financed it, and who gave a direct order to his employees aboard the ship to ground it. The upward departure reflected a careful and reasoned application of the guidelines. U.S. v. Fei, 225 F.3d 167 (2d Cir. 2000).

2nd Circuit holds that state misdemeanors constituted aggravated felonies. (340) From 1990 to 1997, defendant was convicted of a number of misdemeanors in the state of Rhode Island. On three occasions, he received suspended one-year sentences, together with one year’s probation. He was deported and subsequently illegally reentered the country. The district court applied a 16-level increase under § 2L1.2(b)(1) (A) for reentering the country after deportation following an aggravated felony conviction. The Second Circuit held that defendant’s state misdemeanors for which suspended sentences of one year were imposed constituted “aggravated felonies” under § 2L1.2. An aggravated felony is defined in 8 U.S.C. §§ 1101(a)(43)(F) & (G) to include certain offenses “for which the term of imprisonment [] at least one year.” The panel agreed with the Third Circuit in U.S. v. Graham, 169 F.3d 787 (3d Cir. 1999), that Congress’ definition of the term “aggravated felony” was a “term of art” that includes “certain misdemeanants who receive a sentence of one year.” The definition refers to the sentence actually imposed, not the authorized minimum term, and the fact that the sentence was suspended was irrelevant. Section 1101(a) (48)(B) states that any reference in § 1101(a) to a term of imprisonment “is deemed to include the period of incarceration or confinement ordered by the court … regardless of any suspension … in whole or in part.” U.S. v. Pacheco, 225 F.3d 148 (2d Cir. 2000).

2nd Circuit says transporting aliens on narrow shelf under truck created risk of death or serious injury. (340) Defendant attempted to smuggle four Chinese women into the United States from Canada. About one mile from the border, the women were put on 31 inch plywood shelves that were placed on beams under the commercial truck defendant was driving. Only their torsos were supported by the shelf; their feet were propped up by cross bars running beneath the truck. The two women in the front had their legs suspended over the mechanical parts of the truck, including the drive shaft, while the two women in the back had their legs suspended with full exposure to the road. When defendant attempted to cross the border, the temperature was 4-10 degrees Fahrenheit. The Second Circuit affirmed a § 2L1.1(b)(5) increase for “recklessly creating a substantial risk of death or serious bodily injury to another person.” Transporting aliens on a shelf underneath a moving truck with at least half of their bodies exposed to either the drive shaft or the road and outside elements was enough to support the increase. U.S. v. Kang, 225 F.3d 260 (2d Cir. 2000).

2nd Circuit finds that despite statement about recidivism, court made departure under § 5K2.0. (340) Defendant was acquitted of charges relating to a bombing plot and convicted of possessing a counterfeit alien registration card. The district court departed from a range of 0-6 months to a 36-month term, finding that defendant’s possession of the counterfeit green card was part of a much larger pattern of serious frauds in connection with U.S. immigration laws. Defendant challenged the departure on the grounds that the court failed to state whether the departure was pursuant to § 4A1.3 or § 5K2.0. The Second Circuit ruled that the court’s findings make it sufficiently clear that the departure was premised on § 5K2.0. While the court mentioned that it had a concern about recidivism, that concern was prompted by the factors on which it relied in departing; the concern for recidivism was one of those factors. The court was concerned with the breadth of defendant’s unlawful and unpunished conduct, and his disdain for U.S. immigration laws. The heartland of § 2L2.2 does not include a defendant who has engaged in fraudulent conduct at every turn, and whose possession of a counterfeit green card was bolstered by other facially authentic but invalid documentation acquired by fabrication, fraud and forgery. U.S. v. Khalil, 214 F.3d 111 (2d Cir. 2000).

2nd Circuit rejects plea agreement limiting sentence in alien reentry case. (340) “Subject to subsection (b),” a deported alien convicted of reentering the United States without permission may be imprisoned not more than two years. 8 U.S.C. § 1326(a). However, if the deportation following a conviction for an aggravated felony, subsection (b) provides for a maximum penalty of 20 years. Defendant’s plea agreement stated that he agreed to plead guilty to violating § 1326(a), and that the maximum penalty he faced was two years. In Almendarez-Torres v. U.S., 523 U.S. 224 (1998), the Supreme Court held that §§ 1326(a) and (b) do not define separate offenses; rather § 1326(b) merely sets out enhanced penalties for certain defendants. Defendant argued that Almendarez-Torres was not controlling, since the defendant in that case had been charged under § 1326 generally, whereas he had only been charged under § 1326(a). The district court held that acceptance of the plea agreement would be contrary to Almendarez-Torres and the Second Circuit agreed. The fact that the charge lodged against defendant, unlike the defendant in Almendarez-Torres, cited only § 1326(a) was irrelevant. Section 1326(a) itself, which states that it is “[s]ubject to subsection (b),” makes the provisions of subsection (b) applicable whether or not the charging instrument itself makes reference to (b). The plea agreement improperly purported to set defendant’s maximum penalty below the maximum set by Congress and to bar the court from applying the applicable guideline. U.S. v. Romero-Tamayo, 212 F.3d 729 (2d Cir. 2000).

2nd Circuit holds that defendant’s consent to deportation did not warrant downward departure. (340) Defendant pled guilty to importing heroin into the U.S. He also entered into a stipulation with the INS permitting his removal from the U.S. at the conclusion of his imprisonment, without a hearing or process of any sort. The district court departed downward based on defendant’s consent to deportation. In U.S. v. Galvez-Falconi, 174 F.3d 255 (2d Cir. 1999), the Second Circuit held that a defendant seeking a departure for consenting to deportation must present a colorable, non-frivolous defense to deportation, such that the act of consenting to deportation carries with it unusual assistance to the administration of justice. The district court distinguished Galvez-Falconi, principally on the ground that, unlike this case, the defendant in Galvez-Falconi had previously been deported and was convicted of illegally re-entering the country, an offense that subjected him to summary deportation proceedings. The Second Circuit found Galvez-Falconi applicable: the fact defendant was convicted of drug charges, while Galvez-Falconi involved a defendant convicted of illegally re-entering the U.S., did not distinguish the case. Moreover, the vast majority of illegal aliens are removed from the U.S. without formal proceedings. Therefore, defendant’s stipulation to deportation did not provide unusual assistance or make his case atypical. Thus, without a proffer of some colorable, non-frivolous defense to deportation, defendant’s consent to deportation was not a proper basis for departure. U.S. v. Sentamu, 212 F.3d 127 (2d Cir. 2000).

2nd Circuit bars departure based on disparity caused by Southern California district’s charging policy. (340) Defendants pled guilty to unlawfully entering the US following deportation for conviction of an aggravated felony, in violation of 8 U.S.C. § 1326. The US Attorney’s Office in the Southern District of California has adopted a policy under which aliens who re-enter the US after having been deported following their convictions for aggravated felonies, and who agree to plead guilty, are charged under § 1325(a) rather than § 1326. Section 1325(a) carries a much lower maximum sentence than § 1326. The Second Circuit held that the district court lacked authority to grant a downward departure solely to match lower sentences imposed in the Southern District of California as a result of the exercise of prosecutorial discretion in that district to bring charges under § 1325(a) instead of § 1326. First, the departure inquiry must focus on the facts of the case in which the departure is sought. Second, the Sentencing Commission appears to have proscribed, as a categorical matter, the consideration of plea-bargaining practices even as they relate to a defendant’s own misconduct. See U.S. v. Stanley, 928 F.2d 575 (2d Cir. 1991) (rejecting departures based on sentencing disparities created by a prosecutor’s plea-agreement practices). Under the Chapter Six policy statements, a judge should reject a plea agreement, rather than depart upward, to compensate for what the court regards as undue prosecutorial lenience. If that is the case, there is no room for a downward departure to match lenience in an unrelated case. U.S. v. Bonnet-Grullon, 212 F.3d 692 (2d Cir. 2000), superseded on other grounds by statute, U.S. v. Leiva-Deras, 359 F.3d 183 (2nd Cir. 2004).

2nd Circuit says defendant must meet listed criteria to receive departure for seriousness of aggravated felony. (340) Defendant pled guilty to illegally reentering the US after being deported following conviction for an aggravated felony, a 1991 drug offense. Note 5 to § 2L1.2 authorizes a downward departure based on the seriousness of the aggravated felony where (A) the defendant has previously been convicted of only one felony offense; (B) such offense was not a crime of violence or a firearms offense; and (C) the term of imprisonment imposed did not exceed one year. Defendant did not meet this criteria since he also had a 1973 conviction for felony possession of a weapon. The Second Circuit held that the district court lacked the power to depart based on the nature of defendant’s predicate aggravated felony because defendant did not meet the criteria listed in note 5. In enacting note 5, the Sentencing Commission defined the “heartland” of cases under § 2L1.2 by exclusion. That is, the “heartland” of § 2L1.2 cases includes all cases of illegal reentry following conviction for an aggravated felony, except those that meet the three enumerated criteria. Because this factor was adequately taken into consideration by the Sentencing Commission, it was not a proper basis for departure absent satisfaction of the three listed conditions. U.S. v. Tappin, 205 F.3d 536 (2d Cir. 2000).

2nd Circuit upholds attorney’s increase for hundreds of false documents; rejects increase for his employee. (340) Defendant, an attorney, submitted false asylum applications on behalf of hundreds of immigrants, many of whom had no idea that such an application was being submitted. The Second Circuit upheld a § 2L2.1 increase for defendant for an offense involving more than 100 false documents. Defendant’s office was responsible for submitting hundreds, if not thousands, of false applications. One employee testified that he processed thousands of false applications, and an INS agent testified that hundreds of applications bore boilerplate accounts of persecutions. However, the Second Circuit reversed a § 2L2.1 enhancement for Khan, an attorney from Bangladesh who worked for defendant as an interpreter. Unlike defendant, Khan was not responsible for every application that left the office. Given the dearth of evidence connecting Khan to individual applications, and equally strong probability that applications of Bangladeshis not specifically tied to Khan were attributable to another employee, it was error to sentence Khan for the additional applications submitted by defendant’s office. U.S. v. Walker, 191 F.3d 326 (2d Cir. 1999).

2nd Circuit rules defendant smuggled illegal aliens for profit. (340) Defendant argued that he deserved a § 2L1.1(b)(1) reduction because he did not smuggle Yugoslavian immigrants through Canada and into the U.S. for profit. He pointed to the fact that there was a distant familial relationship between him and the aliens involved in the offense of conviction, a co-conspirator and defendant’s wife were distantly related, and defendant was of the same religious and ethnic background as the aliens. Although defendant’s counsel stated at sentencing that defendant was not paid, defendant was never asked directly if he had been paid, and did he not state voluntarily that he had not been paid. The government argued that it was reasonable to infer that defendant committed the offense for profit, given defendant’s repeated trips and long distance phone calls between Montreal and the U.S., defendant’s recruitment and payment of others, the fact that defendant did not have a job, and the fact that other participants in the scheme were paid very well. The Second Circuit held that the district court’s finding that defendant participated in the smuggling conspiracy for profit was not clearly erroneous. There were two permissible views of the evidence, and the sentencing judge’s view would not be overturned on appeal. U.S. v. Krcic, 186 F.3d 178 (2d Cir. 1999).

2nd Circuit authorizes departures in limited situations based on consent to deportation. (340) Defendant moved for a downward departure based on his willingness not to oppose deportation. The government told the court that it was the policy of the U.S. Attorney in the Northern District of New York to oppose all such applications. Agreeing with the First Circuit in U.S. v. Clase-Espinal, 115 F.3d 1054 (1st Cir. 1997), the Second Circuit held that where a defendant seeking a departure based on consent to deportation can present a colorable, non-frivolous defense to deportation, a sentencing court has the authority under § 5K2.0 to depart. Such an act can carry with it unusual assistance to the administration of justice. However, in the absence of a colorable, non-frivolous defense to deportation, a downward departure based on a defendant’s consent to deportation is not authorized by § 5K2.0. When a defendant can present such a defense, there is no further requirement that the government move for, or otherwise support, a departure on the basis of a defendant’s consent to deportation. Unlike § 5K1.1, nothing in the text of § 5K2.0 requires that the government move or consent to a departure. U.S. v. Galvez-Falconi, 174 F.3d 255 (2d Cir. 1999).

2nd Circuit uses different interpretations of aggravated felony in sentencing and immigration contexts. (340) In U.S. v. Polanco, 29 F.3d 35 (2d Cir. 1994), the Second Circuit ruled that a prior conviction is an aggravated felony under § 2L1.2 if (1) the offense is punishable under the Controlled Substances Act, and (2) it is a felony under either state or federal law. Under this test, so long as the prior offense conduct is punishable under the Controlled Substances Act, the enhancement applies to drug crimes that are state, but not federal, felonies. In Jenkins v. INS, 32 F.3d 11 (2d Cir. 1994), the Second Circuit applied the same definition of aggravated felony in the context of an application for a discretionary waiver of deportation. The Board of Immigration Appeals later adopted a contrary position, and stated that it would follow Jenkins in deportation and asylum cases in the Second Circuit. Thus, in Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996), to avoid “disparate treatment of similarly situated aliens under the immigration laws,” the Second Circuit overruled Jenkins and ruled that “aggravated felonies” as defined in 8 U.S.C. § 1101(a)(43), excludes drug felonies that are state, but not federal, felonies. In this case, the Second Circuit held that Aguirre did not overrule Polanco’s interpretation of aggravated felony in the sentencing context. The different interpretations of the term are warranted by the differing purposes of the provisions incorporating that term. U.S. v. Pornes-Garcia, 171 F.3d 142 (2d Cir. 1999).

2nd Circuit says aggravated felony enhancement violated ex post facto clause. (340) Defendant pled guilty to illegally reentering the country after deportation, in violation of 8 U.S.C. § 1326. Guideline § 2L1.2 (b)(2) provides for a 16-level enhancement if the defendant was deported after a conviction for an “aggravated felony.” The district court concluded that defendant’s Florida conviction for indecent assault involving a minor was an aggravated felony. The court looked to 8 U.S.C. § 1101(a)(43)(A), which defines aggravated felony to include “sexual abuse of a minor.” However, “rape and sexual abuse of a minor” were not added to the list of aggravated felonies until September 1996. Defendant’s crime was completed in February 1996, when he was discovered in the country by the INS. The Second Circuit held that enhancing defendant’s sentence based on a statute enacted after the completion of his offense violated the ex post facto clause. Although defendant failed to raise this claim in the district court, the enhancement constituted plain error. On remand, the court may consider whether the enhancement might be proper based on any of defendant’s other prior convictions, regardless of whether they were listed in the indictment. U.S. v. Avila-Ramirez, 170 F.3d 277 (2d Cir. 1999).

2nd Circuit applies federal law to determine that state conviction was for aggravated felony. (340) In 1989, defendant, an illegal alien, was convicted of drug charges in Texas state court. The Texas court sentenced him to seven years’ imprisonment, suspended the prison sentence, and imposed a five-year period of probation. After the period of probation ended, the Texas court set aside defendant’s conviction on the ground “that the period of probation [had] expired, and that all conditions of probation [had] been satisfactorily fulfilled.” Defendant later was convicted of illegally reentering the country after deportation in violation of 8 U.S.C. § 1326. He argued that the Texas conviction should not be considered an aggravated felony under § 2L1.2(b)(2) because his conviction had been vacated. The Second Circuit held that federal law, rather than state law, governs the definition of what is a “conviction” under § 2L1.2. Defendant’s 1989 Texas conviction was set aside solely because the period of his probation had “expired” and he had fulfilled all of the conditions of his sentence. His conviction was not reversed, and the vacatur order was not based on any showing of innocence or on any suggestion that the conviction had been improperly obtained. The 1994 Texas order thus did not alter the significance of defendant’s conviction. U.S. v. Campbell, 167 F.3d 94 (2d Cir. 1999).

2nd Circuit holds that guidelines’ definition of aggravated felony has no time restriction. (340) Defendant pled guilty to reentering the U.S. after deportation in violation of 8 U.S.C. § 1326. Guideline § 2L1.2(b)(2) provides for a 16-level enhancement if the defendant has been convicted of an “aggravated felony” prior to deportation. The definition of aggravated felony for § 1326(b)(2) is in 8 U.S.C. § 1101(a)(43). Prior to 1990, the statute’s definition of aggravated felony was limited to murder and certain drug and firearm charges. This definition was expanded in 1990 to include certain crimes of violence. The expanded definition only applies to offenses committed after November 29, 1990. Application note 7 to § 2L1.2 contains an expanded definition of aggravated felony that includes crimes of violence. It does not contain a temporal restriction. The Second Circuit held that the guidelines’ definition of aggravated felony does not incorporate the statute’s temporal restriction. The structure and terms of the guidelines, unlike those in the statute, do not suggest that only crimes of violence committed after November 29, 1990 may be taken into account. The note’s unexplained reference to § 1101(a)(43) is not an incorporation of the statute’s temporal restriction. U.S. v. Westcott, 159 F.3d 107 (2d Cir. 1998).

2nd Circuit rejects downward departure to equalize sentence with aliens who stipulate to deportation. (340) In the Eastern District of New York, the U.S. Attorney has a policy of recommending a one-level downward departure to alien defendants who agree to waive their right to a removal hearing before an immigration judge and their right to appeal or otherwise challenge the removal order. Defendant, a naturalized citizen, argued that to deny him the one-level departure would penalize him for having entered the country legally and becoming a citizen. The district court granted the one-level departure to account for the unfairness of such departures on similarly situated Americans. The Second Circuit reversed, holding that defendant’s status as a U.S. citizen is not a permissible basis for departure. Even assuming that stipulation to departure is a proper basis for departure ¾ a question not yet decided by this Circuit ¾ defendant was not similarly situated to alien defendants because he would not be deported for his criminal conviction. U.S. v. Young, 143 F.3d 740 (2d Cir. 1998).

2nd Circuit denies acceptance credit where alien raised factual challenge to guilt. (340) Defendant was convicted of illegally reentering the U.S. after having been deported. At trial, he argued that his 1990 deportation was illegal. Nevertheless, he argued that he had accepted responsibility, claiming he only went to trial to raise a collateral legal issue, i.e. the validity of the underlying deportation, and not an issue of “factual guilt.” The Second Circuit upheld the denial of the § 3E1.1 reduction, although it agreed that the validity of the underlying deportation was a collateral issue. The statute, 8 U.S.C. § 1326, does not require that the alien have been “properly” or “lawfully” deported. Thus, if defendant went to trial solely to make a collateral attack on the legality of the underlying deportation, he might be entitled to the reduction. However, defendant’s attorney also sought to raise a defense that defendant lacked the specific intent to reenter the U.S. illegally. Also, during the course of the trial, defense counsel challenged a government witness testifying to the circumstances of defendant’s departure from the U.S., trying to raise doubt as to whether defendant was the person the INS agent escorted to the departing aircraft. This was an attempt to cast doubt upon the fact, rather than the validity, of defendant’s deportation. U.S. v. Paredes-Batista, 140 F.3d 367 (2d Cir. 1998).

2nd Circuit refuses to review refusal to depart based on consent to deportation. (340) Defendant contended that they were entitled to a one point downward departure based on their willingness to stipulate to deportability and accept deportation. The district judge assumed she had the authority to grant such a departure but declined to do so. The Second Circuit held that it lacked authority to review the court’s decision. The court did not address whether stipulation to departure can be a proper ground for departure or whether departure is warranted only as part of a negotiated plea agreement. The judge assumed that she had the power to grant the departure, but denied it in the exercise of her discretion. The Attorney General’s memorandum to federal prosecutors encouraging them to recommend sentence reductions in return for plea agreements that include consent to administrative deportation does not require courts to grant such departures. U.S. v. Zapata, 135 F.3d 844 (2d Cir. 1998).

2nd Circuit says indeterminate sentence of more than five years is a sentence of at least five years. (340) Defendant, an illegal alien, was convicted of attempted robbery in New York state court and sentenced to an indeterminate prison term of 30-90 months. He was released after 30 months and deported. He illegally reentered the country again and was convicted of illegal reentry after deportation. The district court applied the 16-level aggravated felony enhancement, despite defendant’s argument that the attempted robbery did not involve a prison term of at least five years. The Second Circuit held that an indeterminate sentence imposing a maximum of five or more years is a sentence of “at least five years,” even if the minimum is below five years. Generally, sentences for variable or unspecified periods are treated as sentences for the maximum period specified, or if unspecified, for the maximum permissible sentence under the applicable statute. U.S. v. Galicia-Delgado, 130 F.3d 518 (2d Cir. 1997).

2nd Circuit uses prior crime for both criminal history and aggravated felony enhancement. (340) Defendant pled guilty to unlawful reentry to the U.S. after deportation following conviction for an aggravated felony. The Second Circuit held that the district court properly counted defendant’s prior aggravated felony both in calculating his criminal history and in applying the § 2L1.2(b)(2) aggravated felony enhancement. Note 5 expressly provides that an adjustment under subsection (b)(2) for a prior felony conviction applies in addition to any criminal history points added for such conviction. Impermissible double counting is the judicial augmentation of a defendant’s sentence beyond the applicable statute or sentencing guideline. Congress is free to prescribe any sentence that in its view reflects the seriousness of the underlying offense and the characteristics of the offense. The Sentencing Commission, acting on Congressional authority, has indicated that a prior crime should be included in a defendant’s criminal history and for aggravated felony enhancement purposes. U.S. v. Torres-Echivarria, 129 F.3d 692 (2d Cir. 1997).

2nd Circuit upholds judge’s rejection of alien’s plea agreement as too lenient. (340) Defendant illegally reentered the country after being deported following conviction for an aggravated felony. He agreed to plead guilty to the lesser offense of illegal entry under 8 U.S.C. § 1326(a), which carried a statutory maximum sentence of 24 months. The district judge rejected the plea agreement as excessively lenient given past leniency and the fact that the instant prosecution was likely to be short and successful. Defendant ultimately pled guilty to unlawful entry after deportation following conviction of an aggravated felony, under 8 U.S.C. § 1326(b)(2). The Second Circuit upheld the district court’s decision to reject the first proposed plea agreement. Guideline section § 6B1.2 requires a judge to determine whether the remaining charges reflect the seriousness of the underlying offense and whether the agreement will undermine the statutory purposes of sentencing. The court did not abuse its discretion in deciding that allowing defendant to plead to an offense carrying a maximum sentence of 24 months, when the guidelines applicable to the offense of indictment called for a much higher sentence, would not serve the purposes of the guidelines. U.S. v. Torres-Echivarria, 129 F.3d 692 (2d Cir. 1997).

2nd Circuit finds no ineffective assistance in failing to seek departure for deportation. (340) Defendant argued that his counsel was ineffective in failing to seek a downward departure in exchange for defendant’s waiver of a deportation hearing. Six months before sentencing, the Attorney General recommended that federal prosecutors agree to a one or two level downward departure for non-citizen defendants who agree to automatic deportation after completing their term of imprisonment. The Second Circuit found no ineffective assistance since there was no evidence that such a policy was implemented in that district at the time of defendant’s sentencing. There was no reason to believe that the district court would have been willing to depart further downward on that basis. U.S. v. Prince, 110 F.3d 921 (2d Cir. 1997).

2nd Circuit uses upward departure as starting point for substantial assistance departure. (340) Defendant pled guilty to smuggling illegal aliens into the U.S. and aiding in misconduct resulting in a loss of life. The court concluded that, but for a substantial assistance departure, it would have imposed the maximum five year sentence for the smuggling charge and the maximum 10‑year sentence for the manslaughter charge, for a total of 15 years. In light of the government’s § 5K1.1 motion, however, the court departed downward and ran the sentences concurrently, for a total sentence of ten years. Defendant argued that § 5G1.2(c) required concurrent sentences, and therefore the court failed to give effect to the government’s § 5K1.1 motion. The Second Circuit held that the court properly imposed consecutive sentences by departing upward, and then used the consecutive sentences as a starting point for the substantial assistance departure. The substantial upward departure was reasonable, because (1) multiple deaths resulted, (2) these deaths were the foreseeable result of the intentional grounding of the ship, (3) the conditions on the smuggling vessel were dangerous and inhumane, and (4) the voyage involved more than 100 aliens. U.S. v. Hui, 83 F.3d 592 (2d Cir. 1996).

2nd Circuit rejects basing departure on facts underlying prior aggravated felony. (340) In 1985, defendant pled nolo contendere to aggravated rape and received a five year sentence. He was released on parole after serving a quarter of his sentence, and deported. In 1993, he illegally reentered the United States. Based on this aggravated felony, the district court applied the 16-level enhancement in § 2L1.2(b)(2). However, it departed downward, finding that the prior conviction overstated defendant’s past criminal behavior because, based on the underlying facts, there was a questionable basis for the conviction, and defendant only served two years. The Second Circuit reversed, holding that the district court erred in looking behind the conviction to justify the departure. A sentencing court may only look to the statute under which the defendant was convicted to determine if the offense involved the requisite use of force. Moreover, the court erred in considering that defendant served fewer than five years of his sentence. Under Note 7 to § 2L1.2(b)(2), the term of imprisonment imposed, rather than served, is used to determine an aggravated felony. U.S. v. Amaya-Benitez, 69 F.3d 1243 (2d Cir. 1995).

2nd Circuit departs upward for inhumane conditions on ship smuggling aliens into U.S. (340) Defendant was the original captain of a ship smuggling 300 Chinese nationals to the U.S. Part way through the trip, the crew mutinied and defendant was relieved of duties for the duration of the voyage. The Second Circuit approved an upward departure based on the inhumane conditions for the passengers on the smuggling ship. Although defendant had been relieved of duties at the time the ship was intentionally grounded and 10 passengers drowned, he was responsible for the condition of the passengers until the mutiny. He could not place the blame on the land-based smugglers who owned the boat. Defendant was fully familiar with the smuggling operation and voluntarily chose to participate as captain. The conditions were clearly “inhumane.” Nearly 300 passengers were packed into 800 square feet of cargo space for a voyage halfway around the world, lasting more than three months, with inadequate water supplies and food, no toilet facilities, no life preservers or life boats, and only a single ladder providing a means of escape from the hold. The departure from a 18-24 month range to a sentence of 60 months was substantial but reasonable. U.S. v. Moe, 65 F.3d 245 (2d Cir. 1995).

2nd Circuit approves upward departure for defendant who became captain of smuggling ship partway through voyage. (340) Defendant was originally the first officer on a ship smuggling 300 Chinese nationals to the U.S. Part way through the trip, the crew mutinied and defendant was appointed captain by the mutineers. Under defendant’s direction, the ship intentionally grounded when it reached the U.S. and the passengers were ordered to jump. Ten of the passengers drowned in the rough waters. The Second Circuit approved an upward departure based on several of the factors set forth in note 5 to § 2L1.1. Defendant knew when he signed on that more than 100 people were going to be involved. He also knew the conditions were dangerous and inhumane. He nonetheless agreed to participate in the scheme, and furthered the scheme by acting in a supervisory capacity (both as first officer and captain). He participated in the decision to intentionally ground the boat, which led to the death of 10 people. Defendant was responsible for the number of passengers on board, the conditions on the boat, and the events that led to the deaths of the passengers. The departure from a 21-27 month range to a 54-month sentence was reasonable under the circumstances. U.S. v. Moe, 65 F.3d 245 (2d Cir. 1995).

2nd Circuit rejects downward departure from 16-level enhancement in immigration case. (340) Defendant was convicted of re-entering the country following deportation. The court originally applied a 16-level enhancement for deportation after conviction of an aggravated felony. This resulted in a 57-month sentence. The court later departed downward to 24 months, finding the previous drug offense was less serious than the typical “aggravated felony.” The court also found that defendant’s deportation was three years after his drug conviction, he was attempting to reenter to visit his family, and there was little threat of recidivism. The Second Circuit reversed. Under U.S. v. Polanco, 29 F.3d 35 (2d Cir. 1994), disparity between the 16-level enhancement and the seriousness of the underlying conviction was not a ground for departure. Nor were the three years between the drug conviction and deportation, because this merely allowed defendant time to violate his parole, commit additional crimes and serve time in prison for those crimes. The fact that he was attempting to visit his wife and children was not an extraordinary circumstance because every deported alien may leave family behind. U.S. v. Abreu-Cabrera, 64 F.3d 67 (2d Cir. 1995).

2nd Circuit says erroneous INS form did not warrant downward departure. (340) When defendant was deported in 1990, he was given an outdated Form I-294 that erroneously warned that if he returned to the U.S. illegally, he would face up to two years of imprisonment under 8 U.S.C. § 1326. The maximum penalty had actually been increased to five years in 1988. In 1992, defendant was found in the U.S. illegally. The Second Circuit held that the erroneous INS form did not limit his sentence to two years. Nor did it transform the statutorily authorized sentence into a due process violation. The form clearly stated that reentry without permission was a felony. Although it misstated the severity of the punishment, it referred to the applicable statute, and that statute correctly stated the authorized punishment. The erroneous form also did not warrant a downward departure. U.S. v. Cruz-Flores, 56 F.3d 461 (2d Cir. 1995).

2nd Circuit again rejects downward departure by district court in deported alien case. (340) Defendant pled guilty to illegally reentering the country after being deported for committing a felony. The district court found that defendant’s prior drug felony was not an aggravated felony under § 2L1.2(b)(2), taking judicial notice of the New York defense bar’s practice of advising low-level drug defendants to plead guilty because they would receive light sentences. In the first appeal, the Second Circuit reversed because the prior drug felony was an aggravated felony. At resentencing, the district court still refused to apply the 16-level aggravated felony enhancement, because the appellate court did not specifically mention the district court’s judicial notice of the defense bar’s practice. The district court also suggested that the 16-level enhancement might violate due process and equal protection. The Second Circuit reversed and remanded to a different district judge, finding no merit to the court’s suggestion that the definition of aggravated felony was unconstitutional. A drug trafficking crime is an aggravated felony regardless of the sentence imposed. U.S. v. Polanco, 47 F.3d 516 (2d Cir. 1995).

2nd Circuit approves departure based on inference that aliens would face involuntary servitude to pay smuggling fee. (340) Defendant conspired to bring 150 aliens into the United States for a fee of $25,000 to $30,000 each. Most of this fee was to be paid after arrival in the U.S. The district judge departed in part because he believed that the aliens would likely have spent years in involuntary servitude in the U.S. in order to pay the smuggling fee. The 2nd Circuit agreed, despite the lack of evidence to support this theory. Upon their arrival in the U.S., each of the 150 aliens would be indebted to the smugglers in amounts ranging from $10,000 to $30,000. “A contract to pay smuggling fees, unenforceable at law or equity, necessarily contemplates other enforcement mechanisms, none of them savory.” The district court was permitted to infer that the huge debts would be paid through the years under circumstances fairly characterized as involuntary servitude. The inhumane conditions aboard the ship used to transport the aliens also supported the upward departure. The ship was designed as a fishing vessel, had only one bathroom, and provided inadequate life preservers and life rafts. The 150 aliens lived in fish holds for 18 weeks and the captain brandished a gun to maintain order. U.S. v. Fan, 36 F.3d 240 (2nd Cir. 1994).

2nd Circuit holds that New York drug offense was aggravated felony under § 2L1.2(b)(2). (340) Section 2L1.2(b)(2) provides for a 16-level enhancement for felons who illegally reenter the country after being deported subsequent to a conviction for an “aggravated felony.” The 2nd Circuit held that defendant’s conviction for selling five grams of cocaine to an undercover police officer in violation of N.Y. Penal Law § 220.34 was an aggravated felony. Because the offense was punishable under the Controlled Substances Act, one of the statutes enumerated in § 924(c), the offense was an aggravated felony under § 2L1.2(b)(2) and 8 U.S.C. § 1326(b)(2), regardless of the quantity or nature of the contraband or the severity of the sentence imposed. U.S. v. Polanco, 29 F.3d 35 (2nd Cir. 1994).

2nd Circuit applies guideline to alien who entered country before effective date but was arrested after. (340) Defendant was convicted under 8 U.S.C. §1326, which prohibits a deported alien from entering or being found in the United States without permission. The district court applied the 1991 version of 2L1.2(b)(2), though defendant had entered the country prior to the effective date of that version. The 2nd Circuit found no ex post facto clause problem, since defendant was found in the United States after the effective date of the guideline. The statute says being found in the country is a separate offense from entering, and defendant was charged and pled guilty on both the theory of illegal entry and of being found in the country. U.S. v. Whittaker, 999 F.2d 38 (2nd Cir. 1993).

2nd Circuit finds court exercised discretion in denying departure while suggesting Commission considered factors. (340) Defendant appealed the district court’s refusal to grant a downward departure from his sentence for being found in the United States after being deported. Defendant argued that he should receive a departure because a prior state conviction affected both his criminal history and his offense level, and because he would likely be punished for violating his state parole. The district court refused to depart, stating that the Sentencing Commission “must have known” that crimes like defendant’s would have the consequences defendant pointed out and that “there is not a good reason” for a departure. The 2nd Circuit concluded that the district court had merely exercised discretion in refusing to depart, and thus that the decision was unreviewable. U.S. v. Whittaker, 999 F.2d 38 (2nd Cir. 1993).

2nd Circuit affirms upward departure in criminal history and offense level based upon the same conduct. (340) Defendant was deported after committing an aggravated felony. After illegally re-entering the United States and committing another crime, he pled guilty to unlawful presence in the United States. The district court departed from criminal history category IV to V pursuant to section 4A1.3, based in part upon the aggravated nature of the crimes underlying defendant’s prior convictions. The court also departed upward by two offense levels under application note 3 to section 2L1.2 because defendant’s deportation followed his conviction for an aggravated felony. The 2nd Circuit rejected defendant’s claim that the two departures constituted impermissible double counting, holding that a criminal history departure and an offense level departure can be based upon the same act. A defendant’s criminal history and offense level measure different things. Thus, this case involved the unusual situation where a prior act is relevant to determining both the defendant’s criminal history category and the offense level for the charged conduct. While this may be double counting in a literal sense, double counting is permissible where a single act is relevant to two dimensions of the guidelines analysis. U.S. v. Campbell, 967 F.2d 20 (2nd Cir. 1992).

2nd Circuit upholds seven offense-level departure even though court did not expressly consider intervening levels. (340) The district court departed upward seven offense levels under application note 3 to section 2L1.2 because defendant illegally reentered the United States after being deported for committing an aggravated felony. The 2nd Circuit rejected defendant’s claim that the extent of the departure was unreasonable because the district court failed to consider and reject each intervening offense level. Although a step-by-step procedure is mandated for criminal history departures, see U.S. v. Kim, 896 F.2d 678 (2nd Cir. 1990), no such rigid procedure is required for offense level departures. The court must make clear on the record how the court determined the magnitude of the departure. Here, the district judge concluded that the guidelines failed to take into account the amendment to immigration laws which increased the penalty from five to 15 years for defendants who were deported for committing aggravated felonies. U.S. v. Campbell, 967 F.2d 20 (2nd Cir. 1992).

2nd Circuit holds that counterfeiting offenses should not be “grouped” with alien offenses. (340) The 2nd Circuit held that § 3D1.2 does not permit counterfeit money offenses to be included in the same group with alien smuggling offenses. Although alien smuggling offense may be grouped with each other, they should not be grouped with unrelated offenses. The court rejected the argument that the United States is a “common victim” in both offenses. The interests protected by the immigration laws are distinct from the interests protected by the currency laws. U.S. v. Kim, 896 F.2d 678 (2nd Cir. 1990).

3rd Circuit rules court adequately considered fast-track disparity. (340) Defendant pled guilty to illegal reentry, in violation of 8 U.S.C. § 1326(a), and was sentenced in a district that did not have a fast-track disposition program for such cases. He argued that the district court committed procedural error by refusing to give meaningful consideration to the disparity in sentences between fast-track and non-fast-track districts. The Third Circuit held that defendant’s sentence, at the bottom of his 41-51 month range, was reasonable. The district court’s statement that it would not “exercise [its] discretion” to grant a fast-track variance was an acknowledgement that it had the power to do so. In explaining why it believed a variance was inappropriate, the court meaningfully considered defendant’s request. U.S. v. Lopez, 650 F.3d 952 (3d Cir. 2011).

3rd Circuit says use of “fast-track” in districts with few immigration cases does not violate equal protection. (340) Defendants pled guilty to illegally reentry, in violation of 8 U.S.C. § 1326(a). They argued that their due process rights were violated because of so-called “fast-track” programs (with lower sentences) in other districts. They conceded that fast-track programs are defensible in districts with a high volume of immigration cases, but challenged the use of these programs in districts with a low volume of immigration cases and in non-border districts. The Third Circuit held that applying the fast-track program in such districts was rationally related to several legitimate government interests, and did not violate defendant’s Fifth Amendment rights. A high volume of immigration cases is not the only reason to authorize a fast-track program. The program may be sanctioned when there are other exceptional local circumstances. The endorsement of fast-track programs in districts with a low volume of immigration cases is rationally related to efficiently prosecuting illegal reentry cases and dealing with demands regarding the allocation of prosecutorial resources. U.S. v. Lopez, 650 F.3d 952 (3d Cir. 2011).

3rd Circuit allows absence of fast-track option to be considered at sentencing. (340) Defendant pled guilty to illegal reentry into the U.S. after deportation, in violation of 8 U.S.C. § 1326(a) and (b)(2). He challenged the district court’s rejection of a downward variance based on the disparity in sentencing among immigration defendants in fast-track district and non-fast-track districts. The district court had found that U.S. v. Vargas, 477 F.3d 94 (3d Cir. 2007), precluded consideration of a variance on this basis as a matter of law. The Third Circuit held that, under the logic of Kimbrough v. U.S., 552 U.S. 85 (2007), it is within a sentencing judge’s discretion to consider a variance from the Guidelines on the basis of a fast-track disparity. The fast-track issue should not be confined to subsection (a)(6), which concerns avoiding unwarranted sentencing disparities. Instead, a sentencing judge has discretion to consider a variance under the totality of the § 3553(a) factors. To justify a reasonable variance by the district court, a defendant must show at the outset that he would qualify for fast-track disposition in a fast-track district. Additionally, the defendant must demonstrate that he would have taken the fast-track guilty plea if offered. U.S. v. Arrelucea-Zamudio, 581 F.3d 142 (3d Cir. 2009).

3rd Circuit says possessing a shank in prison was not crime of violence. (340) Defendant was convicted of possessing a “shank” in prison. The district court found the offense was a crime of violence and sentenced defendant as a career offender. Based on the Supreme Court’s recent decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), the Third Circuit vacated the decision and remanded for further proceedings. Possession of a weapon, even in a prison, is not “roughly similar, in kind as well as in degree of risk posed,” to the enumerated crimes of burglary, arson, extortion, or use of explosives. While no doubt possession of a weapon in prison involves a high degree or risk, under Begay, a serious potential for injury is not enough to qualify a crime for career offender enhancement; the risk created must also be “similar in kind” to the enumerated crimes. They must involve overt, active conduct that results in harm to a person or property. The possibility that one will confront another person with violent results is not sufficient. The Third Circuit’s prior decision in U.S. v. Kenney, 310 F.3d 135 (3d Cir. 2002), which held that possession of a weapon in prison is a crime of violence, was no longer good law in light of Begay. U.S. v. Polk, 577 F.3d 515 (3d Cir. 2009).

3rd Circuit says court cannot toll supervised release while defendant is out of country. (340) Defendant pled guilty to illegal reentry into the U.S. The district court sentenced defendant to 71 months in prison and three years of supervised release. As a “special condition of supervision,” the court ordered that defendant’s term of supervised run “inactive if the defendant is deported. Should the defendant re-enter the United States after deportation, such action will be considered a violation of supervised release.” The Third Circuit held that such tolling exceeded the district court’s power to set conditions of supervised release. Tolling is not a condition of supervised release. Rather, it is a suspension of the supervised release period, a way of removing the defendant from the effects of his sentence for a specific period of time. The error was plain. Even though the district court had no precedent from the Third Circuit to guide its decision, all of the other circuits that have addressed the issue have found that such tolling is impermissible based upon the statutory provisions. U.S. v. Cole, 567 F.3d 110 (3d Cir. 2009).

3rd Circuit holds finds deficient in failing to object to classification of simple assault as crime of violence. (340) Defendant pled guilty to illegal reentry after deportation, and received a 16-level crime of violence enhancement under § 2L1.2(b)(1)(A)(ii) based on a prior Pennsylvania conviction for simple assault. In a pro se motion under 28 U.S.C. § 2255, defendant argued that simple assault is not a crime of violence, and that his trial counsel was ineffective for failing to raise the issue or to object to the PSR. In Popal v. Gonzales, 416 F.3d 249 (3d Cir. 2005), the Third Circuit held that an alien’s conviction under Pennsylvania’s simple assault statute did not constitute a crime of violence under 18 U.S.C. § 16(a). Because a Pennsylvania simple assault violation requires a minimum mens rea of recklessness, it is not a crime of violence. Popal limits categorical crimes of violence to offenses committed through intentional use of force against another than reckless or grossly negligent conduct. Section 16(a)’s definition of “crime of violence” is identical to the definition in § 2L1.2. Therefore, the Third Circuit found that Popal applies to the relevant crime of violence definition in § 2L1.2. Defendant’s attorney performed unreasonably in failing to object to the 16-level enhancement. On its face, the state statute did not require the “use of force” when “causing bodily injury.” Moreover, several decisions were readily available to counsel that endorsed a categorical approach. There was no sound strategy in counsel’s failure to object to the 16-level enhancement. U.S. v. Otero, 502 F.3d 331 (3d Cir. 2007).

3rd Circuit holds “found in” offense began on date defendant entered U.S. (340) Defendant was convicted under 8 U.S.C. § 1326(a) of being an alien found in the U.S. following deportation. Guideline § 4A1.2 provides, in part, that any prior sentence that was imposed within 10 years of the instant offense is counted in a defendant’s criminal history score. Although defendant was “found” in the U.S. when he was arrested in March 2005, he admitted that he had returned to the U.S. immediately after his 1998 deportation, and that he had lived in Pennsylvania for about six years before his arrest. The PSR found that the criminal conduct began at least as early as January 1, 2000, and thus it was proper to include convictions that dated from 1990 in the calculation of defendant’s criminal history. The Third Circuit affirmed, holding that that the “found in” offense began on the date defendant entered the U.S., rather than on the date he was found in the U.S. by authorities. U.S. v. Hernandez-Gonzalez, 495 F.3d 55 (3d Cir. 2007).

3rd Circuit holds that prior conviction for penetration against incapacitated victim was “forcible sexual offense.” (340) Defendant received a 16-level enhancement based on the court’s finding that defendant’s two prior convictions for criminal sexual contact in New Jersey were crimes of violence under § 2L1.2. The offenses involved defendants’ unauthorized sexual touching of female students who were intoxicated or incapacitated. Defendant argued that, following a categorical approach, the offenses were not crimes of violence since the sexual contact for which defendant was convicted did not require physical force – it could be satisfied through proof that the contact occurred through exploitation of the victim’s helplessness. Therefore, it could only be a crime of violence if it constituted a “forcible sex offense.” The Third Circuit held that defendant’s exploitation of the victim’s helpless state constituted a forcible sexual offense, and therefore merited the crime of violence increase. Just as sexual abuse of a minor is included in the definition of a “forcible sexual offense,” so too is penetration of a “physically helpless, mentally defective or mentally incapacitated” victim. U.S. v. Remoi, 404 F.3d 789 (3d Cir. 2005).

3rd Circuit holds that “sentence imposed” refers to maximum term of indeterminate sentence. (340) Guideline § 2L1.2(b)(1), as amended in November 2001, provides for a 16-level enhancement if the defendant was deported following a conviction for a felony that is “a drug trafficking offense for which the sentence imposed exceeded 13 months,” and a 12-level enhancement if the defendant was deported following a conviction for a felony drug trafficking offense “for which the sentenced imposed was 13 months or less.” Defendant was convicted of distributing cocaine in Pennsylvania, and received a sentence of 11 to 23 months, but was paroled shortly after completion of his minimum sentence. Relying on Note 1(A)(iv) to § 2L1.2, defendant argued that the term “sentence imposed” should mean the sentence actually served. This note states that if any portion of a sentence of imprisonment “was probated, suspended, deferred, or stayed, ‘sentence imposed’ refers only to the portion that was not probated, suspended, deferred, or stayed.” The note does not refer to parole. The Third Circuit held that the term “sentence imposed” in § 2L1.2(b)(1) means the maximum term of imprisonment in an indeterminate sentence, subject to the exceptions for probations, suspensions, deferrals, and stays as provided in Note 1(A)(iv). The Sentencing Commission intentionally omitted parole from the list of actions that restrict the term “sentence imposed” to “time served.” The district court properly applied a 16-level increase to defendant. U.S. v. Frias, 338 F.3d 206 (3d Cir. 2003).

3rd Circuit holds that Statutory Index’s reference to old version of statute was inadvertent error. (340) Defendant was convicted of preventing or hampering his departure following an order of removal, in violation of 8 U.S.C. § 1353(a)(1)(C). The district court sentenced him under § 2L1.2. Defendant argued that because his offense of conviction was not listed in the Statutory Index of the Sentencing Guidelines, the district court was required by § 2X5.1 to apply the most analogous guideline for the offense, which he contended was § 2A2.4. The Third Circuit held § 2L1.2 is applicable to convictions for violations of 8 U.S.C. § 1253(a)(1)(C), and that the failure to list this offense in the Statutory Index was an inadvertent error by the Sentencing Commission. The predecessor statute to § 1253, 8 U.S.C. § 1252(e), remains listed in the Statutory Index. Section 2L1.2 is listed as the applicable guideline. The fact that the Statutory Index refers to § 1252(e), the old “failure to depart” statute, rather than § 1253(a), the new “failure to depart” statute, was an inadvertent omission by the Sentencing Commission. U.S. v. Bamfield, 328 F.3d 115 (3d Cir. 2003).

3rd Circuit holds that asserted legal purpose for illegal reentry did not warrant downward departure. (340) Defendant was convicted of unlawfully reentering the country after deportation. He argued that his case was not within the heartland of the guidelines for illegal reentry cases because he had reentered the U.S. to obtain legal employment and he thought he could reenter legally after four or five years from his deportation. The Third Circuit found held that defendant’s purpose in illegally reentering the U.S. did not warrant a downward departure. Under the language of 8 U.S.C. § 1326, the motive of the illegal entrant is irrelevant to the commission of the offense. U.S. v. Dyer, 325 F.3d 464 (3d Cir. 2003).

3rd Circuit includes suspended portion of sentence in “term of imprisonment” for aggravated felony. (340) Note 5 to § 2L1.2 provides that a defendant who receives a § 2L1.2(b)(1)(A) aggravated felony enhancement may be eligible for a downward departure in certain circumstances if “the term of imprisonment” imposed for the offense did not exceed one year. The district court ruled that note 5 did not apply to defendant because, notwithstanding the partial suspension of his prior crack sentence, the circuit court imposed a sentence exceeding one year. Defendant pointed to §§ 4A1.2(b)(1) and (2), which excludes from the definition of the term “sentence of imprisonment” any portion of the sentence that was suspended. The Third Circuit found this irrelevant, since § 4A1.2(b) defines “sentence of imprisonment” for purposes of computing a defendant’s criminal history category. What is implicated here is 8 U.S.C. § 1101(a)(48)(B), which provides that “[a]ny reference to term of imprisonment … is deemed to include the period of incarceration or confinement ordered by a court of law, regardless of any suspension …” Note 1 to § 2L1.2 incorporates the definition of aggravated felony in the last paragraph of 8 U.S.C. § 1101(a)(43), which uses the phrase “term of imprisonment” as defined in 8 U.S.C. § 1101(a)(48)(B). U.S. v. McKenzie, 193 F.3d 740 (3d Cir. 1999).

3rd Circuit holds that misdemeanor carrying one-year sentence was aggravated felony. (340) In 1990, defendant was convicted of petit larceny, a Class A misdemeanor with a maximum of one year’s imprisonment under New York law. He was deported and later pled guilty to illegally reentering the country after deportation. The Third Circuit held that the petit larceny conviction was properly classified as an aggravated felony under § 2L1.2(b)(1)(B), even though it was only a Class A misdemeanor. The definition of an aggravated felony in 8 U.S.C. § 1101(a)(43)(G) includes “a theft offense … for which the term of imprisonment at least one year.” Although this sentence is missing a crucial verb, the court examined a prior version of the statute to determine that Congress intended to reference the sentence actually imposed rather than the statutory minimum. Because defendant received a one-year sentence, the petit larceny conviction qualified as an aggravated felony. The court agreed that it was odd to find that a misdemeanor could be an aggravated felony. The court concluded that Congress was defining a term of art, “aggravated felony,” which in this case includes certain misdemeanors for which the defendants receive a one-year sentence. U.S. v. Graham, 169 F.3d 787 (3d Cir. 1999).

3rd Circuit rejects downward departure for consent to deportation, age and hospitalization. (340) After arriving in the U.S. on a flight from Colombia, defendant was arrested by customs officials who found heroin in his shoes. He then informed officials that he also had ingested pellets of heroin. The agents took him to a hospital, where he remained for 11 days while he passed 90 pellets. He sought a downward departure based on his willingness to consent to deportation, his age and the deterrent effect of his hospitalization. The Third Circuit held that the district court did not err in refusing to depart. Consent to deportation is not a basis for a § 5K2.0 departure unless defendant has a non-frivolous defense to deportation. Moreover, because the judiciary has limited power with regard to deportation, a district court cannot depart downward on this basis without a request from the U.S. Attorney. Age is only relevant when the defendant is elderly and infirm. Defendant did not assert any extraordinary condition other than the fact that he was 67 years old at the time of sentencing. He did not suffer from any unusual impairments for a man his age. Finally, defendant admitted he was aware of the health risks involved in ingesting heroin prior to his trip. The physical trauma he experienced, which is inherent in smuggling drugs in this manner, cannot be considered an unusual characteristic. U.S. v. Marin-Castaneda, 134 F.3d 551 (3d Cir. 1998).

3rd Circuit holds that immigration statute is a sentencing enhancement provision. (340) Defendant illegally reentered the U.S. after being deported following a drug conviction. Under 8 U.S.C. § 1326(a), a defendant who illegally reenters the U.S. following deportation is subject to two years’ imprisonment. Under § 1326(b)(2), if the deportation followed conviction for an aggravated felony, the defendant is subject to 20 years’ imprisonment. The Third Circuit held that § 1326(b)(2) is a sentencing enhancement provision rather than an offense distinct from § 1326(a). Section 1326(a) sets out the elements of the offense (arrest, deportation, and re-entry) and certain penalties. Subsection (b)(2) sets forth no elements but only provides for stiffer penalties based on criminal history. U.S. v. DeLeon-Rodriguez, 70 F.3d 764 (3d Cir. 1995).

3rd Circuit bases sentence on aggravated prior felony even though plea was to non-aggravated prior. (340) Defendant was deported in 1988 after being convicted of an aggravated felony. He later pled guilty to violating 8 U.S.C. § 1326(b)(1) for illegally re-entering the country following commission of a non-aggravated felony. Nevertheless, the district court found that his prior conviction was for an aggravated felony, and increased his offense level by 16 levels under § 2L1.2(b)(2). The Third Circuit held that the district court was required to apply § 2L1.2(b)(2), even though defendant pled guilty to having a non-aggravated prior conviction under § 1326(b)(1). The enhancement must be applied even if the aggravated felony is not an element of the crime to which defendant pleads guilty. The district court was required at sentencing to consider all available information in determining whether to apply § 2L1.2(b)(2). U.S. v. Eversley, 55 F.3d 870 (3d Cir. 1995).

3rd Circuit says enhanced penalty for reentry into U.S. does not violate ex post facto clause. (340) Defendant illegally reentered the U.S. after being deported for an aggravated felony conviction. He argued that using his prior aggravated felony conviction to enhance his punishment violated the ex post facto clause. The 3rd Circuit held that because defendant illegally reentered the country after the effective date of the statutory amendment that provided for the enhanced punishment, there was no ex post facto problem. The date of defendant’s prior criminal conduct was not relevant for ex post facto purposes. U.S. v. McCalla, 38 F.3d 675 (3rd Cir. 1994).

3rd Circuit holds that incorrect notice did not bar enhanced penalty for illegal reentry into U.S. (340) Defendant illegally reentered the U.S. after being deported for an aggravated felony conviction. At the time of his deportation, INS agents gave him a standard form that incorrectly warned that reentry into the U.S. would expose him to a maximum prison term of two years. The actual maximum penalty was 15 years. The 3rd Circuit held that the government was not precluded by due process, the rule of lenity or the doctrine of entrapment from seeking a sentence in excess of two years. Due process only requires the criminal statute under which a defendant is convicted to state the punishment for the crime. Here, 8 U.S.C. § 1326(b) clearly stated that 15 years was the maximum penalty for the offense. The rule of lenity only applies to ambiguous criminal statutes. Finally, the defense of entrapment requires the government to actually “implant” the criminal design in the mind of the defendant. The form defendant received clearly notified defendant that reentry would constitute a felony. Judge McKee dissented. U.S. v. McCalla, 38 F.3d 675 (3rd Cir. 1994).

4th Circuit, en banc, holds Maryland resisting arrest conviction was not a crime of violence. (340) Defendant was convicted of illegal reentry by a deported alien after being convicted of an aggravated felony. The district court found that his prior Maryland conviction for resisting arrest, Md. Code, Crim. Law § 9-408(b)(1), constituted a crime of violence for sentencing purposes. The Fourth Circuit, en banc, reversed, holding that the offense did not have as an element the use, attempted use, or threatened use of physical force against the person of another, and therefore did not qualify categorically as a crime of violence under § 2L1.2. The force required for conviction pursuant to the Maryland resisting arrest statute was “offensive physical contact,” a threshold far lower than violent force capable of causing pain or injury to another. There was no plausible argument that violent force of the type contemplated by the force clause of the reentry guideline was a required element of the Maryland crime of resisting arrest. U.S. v. Aparicio-Soria, 740 F.3d 152 (4th Cir. 2014) (en banc).

4th Circuit says North Carolina indecent liberties with a minor was sexual abuse of a minor. (340) Guideline § 2L1.2(b)(1)(A) provides for a 16-level increase if the defendant has a prior felony conviction for “a crime of violence.” “Sexual abuse of a minor” is listed as a crime of violence in Note 1(B)(iii) to § 2L1.2. The Fourth Circuit, bound by U.S. v. Diaz–Ibarra, 522 F.3d 343 (4th Cir. 2008), held that defendant’s prior North Carolina conviction for taking indecent liberties with a minor, N.C. Gen.Stat. § 14–202.1(a), constituted sexual abuse of a minor, and was therefore a crime of violence. Diaz–Ibarra, described “sexual abuse of a minor” as a “perpetrator’s physical or nonphysical misuse or maltreatment of a minor for a purpose associated with sexual gratification.” The elements of the North Carolina indecent liberties crime corresponded in substance with the generic definition of sexual abuse of a minor. Both targeted conduct directed towards minors, both required a mental element focused on sexual gratification, and both cast a broad net in capturing physical or nonphysical conduct. U.S. v. Perez-Perez, 737 F.3d 950 (4th Cir. 2013).

4th Circuit holds that assault and battery of a high and aggravated nature was not crime of violence. (340) Defendant was convicted of illegal reentry after prior deportation. He received a 16-level crime of violence enhancement under § 2L1.2(b)(1)(A)(ii) based on his South Carolina common law conviction for assault and battery of a high and aggravated nature (ABHAN). The Fourth Circuit reversed, holding that the court’s application of the modified categorical approach to ABHAN, an indivisible common law crime, was in error. See U.S. v. Hemingway, 734 F.3d 323 (4th Cir. 2013) (ruling that the Descamps divisibility analysis applies to the question of whether a common law offense constitutes an ACCA predicate crime). Because ABHAN was not divisible, the modified categorical approach did not apply. ABHAN was also not a crime of violence under the categorical approach. ABHAN does not require actual bodily harm to another, nor does it require force against the victim. The error was not harmless since it was not clear that the court would have imposed the same sentence absent the 16-level enhancement. U.S. v. Montes-Flores, 736 F.3d 357 (4th Cir. 2013).

4th Circuit rejects use of modified categorical approach for Maryland’s child abuse statute. (340) The district court applied the modified categorical approach to find that defendant’s conviction under the Maryland child abuse statute, Md. Code, art. 27, § 35C, was a crime of violence under § 2L1.2(b)(1)(A)(ii). Given U.S. v. Gomez, 690 F.3d 194 (4th Cir. 2012), and the Supreme Court’s recent decision in Descamps v. U.S., 133 S.Ct. 2276 (2013), the Fourth Circuit held that the modified categorical approach was inapplicable. The district court had used the modified categorical approach because some, but not all, of the conduct proscribed by § 35C constituted a crime of violence. However, under Descamps and Gomez, a statute is divisible for purposes of using the modified categorical approach only if at least one of the categories into which the statute may be divided constitutes, by its elements, a crime of violence. While § 35C could be divided into categories of physical abuse and sexual abuse, the sexual abuse category was not a generic “forcible sex offense” because the use or threatened use of force was not a required element, and it was not generic “sexual abuse of a minor,” because intent to gratify sexual urges was not a required element. U.S. v. Cabrera-Umanzor, 728 F.3d 347 (4th Cir. 2013).

4th Circuit rules Maryland probation-before-judgment disposition was predicate conviction. (340) Defendant pled guilty to unlawful reentry after deportation, and received a four-level increase under § 2L1.2(b)(1)(D) based on a 2004 Maryland case in which the state judge had issued a “probation before judgment” diversionary disposition of 18 months’ probation without entering judgment. The Fourth Circuit agreed that the Maryland probation-before-judgment diversionary disposition was a predicate conviction. First, § 2L1.2(b)(1)(D) does not incorporate a state law definition of “conviction.” Because § 2L1.2 is an immigration offense, the definition of conviction in 8 U.S.C. § 1101 was controlling. Defendant’s 2004 diversionary disposition was a conviction because he pled guilty to the charged offenses, and was sentenced to some form of restraint on his liberty, namely probation for a period of 18 months. U.S. v. Medina, 718 F.3d 364 (4th Cir. 2013).

4th Circuit rules Oregon conviction for delivering heroin was drug trafficking offense. (340) Defendant pled guilty to illegal entry after deportation, and received a 16-level enhancement under § 2L1.2(b)(1)(A) because of a prior conviction “for a felony that is … a drug trafficking offense for which the sentence imposed exceeded 13 months.” The enhancement was based on a 2001 Oregon conviction for unlawful delivery of heroin. He argued on appeal that the Oregon offense did not qualify as a “drug trafficking offense,” because under Oregon law, one can be convicted of delivery by merely unsuccessfully soliciting drugs from a supplier. The Fourth Circuit concluded that even if defendant only engaged in solicitation, the offense categorically qualified as a drug trafficking offense. The district court properly calculated defendant’s offense level. U.S. v. Medina-Campo, 714 F.3d 232 (4th Cir. 2013).

4th Circuit holds that Tennessee statutory rape was not crime of violence. (340) Defendant pled guilty to illegal reentry by an alien after removal subsequent to an aggravated felony conviction. The district court found that defendant’s Tennessee statutory rape conviction qualified as generic statutory rape, and thus was a crime of violence under § 2L1.2(b)(1)(A)(ii). The Fourth Circuit reversed, holding that that the generic, contemporary meaning of statutory rape sets the general age of consent at 16 years old. Tennessee’s statutory rape provision sets the age of consent at 18, and was therefore significantly broader than the generic offense. Therefore, the conviction did not categorically qualify as a crime of violence. The statutory rape also did not constitute a “forcible sex offense,” a second predicate crime enumerated in § 2L1.2. Finally, because the Tennessee conviction set the age of consent at 18, it did not qualify as sexual abuse of a minor, yet another predicate offense enumerated in § 2L1.2. U.S. v. Rangel-Castaneda, 709 F.3d 373 (4th Cir. Mar. 7, 2013) No. 12-4408.

4th Circuit says threatening crime that would result in death or bodily injury was not a crime of violence. (340) Defendant pled guilty to illegal reentry after deportation. He received a 16-level crime of violence enhancement based on his prior conviction under California Penal Code § 422(a), which prohibits willfully threatening to commit a crime that would result in death or great bodily injury. The Fourth Circuit reversed, holding that defendant’s California conviction was not a crime of violence. The court rejected the Ninth Circuit’s opinion in U.S. v. Villavicencio–Burruel, 608 F.3d 556 (9th Cir. 2010), which held that a § 422(a) conviction was categorically a crime of violence. The statute requires only that the offender “threatens to commit a crime which will result in death or great bodily injury to another.” However, no element of § 422(a) “necessarily include[s] a threatened use of physical force” to accomplish that “result.” An offense that results in physical injury, but does not involve the use or threatened use of force, does not meet the guidelines definition of a crime of violence. U.S. v. Torres-Miguel, 701 F.3d 165 (4th Cir. Dec. 13, 2012).

4th Circuit reverses modified categorical approach where statute’s use-of-force element was not divisible. (340) Defendant pled guilty to illegal reentry after deportation. Using a modified categorical approach, the district court found that defendant’s prior Maryland conviction for child abuse was a crime of violence, and applied a 16-level increase under § 2L1.2(b)(1)(A)(ii). In determining whether a prior conviction is a crime of violence, the Supreme Court requires the district court to examine the statutory elements of the crime. Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008). If the crime can be committed in two different ways, with one constituting a crime of violence and one not, the court should use the modified categorical approach and examine Shepard-approved documents to determine whether the conviction was necessarily for a crime of violence. The Fourth Circuit held that the modified categorical approach applies only to those statutory offenses in which the statute itself is divisible. Here, because the relevant portion of the Maryland statute made no distiction between forceful and nonforceful conduct, the district court erred in using the modified categorical approach. U.S. v. Gomez, 690 F.3d 194 (4th Cir. 2012).

4th Circuit holds that Texas offense met generic definition of burglary despite variation. (340) Defendant pled guilty to illegal reentry, and received an enhanced sentence based on the court’s finding that his prior Texas conviction for burglary of a habitation constituted a crime of violence. The Fourth Circuit affirmed, holding that defendant’s conviction under Texas Penal Code § 30.02(a)(3) satisfied the definition of generic burglary under Taylor v. U.S., 495 U.S. 575 (1990). Defendant argued that because he did not have the requisite intent to commit a crime at the time that he illegally entered the dwelling, he did not commit generic burglary. The panel agreed that § (a)(3) did not require that the intent exist at entry, but found that this quirk in timing was not fatal. Under Taylor, “where the generic definition has been adopted, with minor variations, then the trial court need find only that the state statute corresponds in substance to the generic meaning of burglary.” Because section (a)(3) required an unlawful entry, of a building or habitation, and the separate intent to commit a felony, theft, or assault, it corresponded “in substance” to Taylor’s generic definition of burglary. U.S. v. Bonilla, 687 F.3d 188 (4th Cir. 2012).

4th Circuit finds any error in applying aggravated felony enhancement was harmless. (340) Defendant pled guilty to illegal reentry after conviction of an aggravated felony. The court applied an eight-level aggravated felony enhancement under § 2L1.2(b)(1) (C) based on defendant’s second-degree assault conviction in Maryland. Defendant argued that the district court erred by looking to the charging documents in the Maryland case to determine that his second-degree assault conviction arose from his sexual abuse of a minor. The Fourth Circuit upheld defendant’s 36-month sentence as reasonable, ruling that any procedural error in applying the aggravated felony enhancement was harmless. In sentencing defendant, the district court made clear that a 36-month sentence was necessary under § 3553(a) to deter him and to punish his continued flouting of American law. Although the court did not specifically state that it would give the same sentence absent the 8-level enhancement, there is no requirement that it do so. U.S. v. Savillon-Matute, 636 F.3d 119 (4th Cir. 2011).

4th Circuit approves upward variance for impersonating Border Patrol agent. (340) Defendant pled guilty to one count of being found in the U.S. after being deported, and one count of possession a counterfeit U.S. Resident Alien card. At sentencing, the court decided to vary upward, based on defendant’s four prior convictions for obtaining property by false pretenses. The 84-month sentence was six years above the top of the recommended guideline range. The Fourth Circuit upheld the sentence as reasonable. While the increase was substantial, it was not an abuse of discretion based on the totality of the circumstances. The district court properly considered and fully explained its decision pursuant to the factors set forth in 18 U.S.C. § 3553(a). The extent and seriousness of defendant’s conduct was considerable. He admitted impersonating a Border Patrol agent in furtherance of his scheme to perpetrate a fraud on many vulnerable victims. He also obtained a substantial financial profit from the frauds, and his risk of recidivism was high. U.S. v. Diosdado-Star, 630 F.3d 359 (4th Cir. 2011).

4th Circuit finds it unclear whether California conviction for selling or transporting marijuana was for “drug trafficking,” (340) Defendant pled guilty to illegally reentering the U.S. following deportation. The district court applied a 16-level enhancement for a prior drug-trafficking conviction based on defendant’s prior California conviction for selling or transporting marijuana, under Cal. Health & Safety Code § 11360(a). The Fourth Circuit ruled that it was not clear whether the California conviction was a drug-trafficking conviction. Section 2L1.2(b)(1) (A) requires a “prior conviction for a felony that is a drug trafficking offense,” not, as the district court ruled, simply a conviction under a statute that criminalizes drug trafficking as well as other activities. Where, as here, the underlying statute prohibits both qualifying and non-qualifying offenses, the sentencing court may determine the character of the prior offense by examining the statutory definition, charging document, written plea agreement, and other reliable documents. Because the district court did not properly interpret § 2L1.2(b)(1)(A), the panel vacated the sentence and remanded for resentencing. U.S. v. Maroquin-Bran, 587 F.3d 214 (4th Cir. 2009).

4th Circuit rules defendant was “found” in the U.S. before his state conviction. (340) Defendant, a deported alien, was arrested in North Carolina on March 3, 2007, for assault. The day of his arrest, a nearby Immigration and Customs Enforcement (ICE) office sent an Immigration Detainer to the county jail, where it was signed by a local deputy who had been deputized by ICE. The Detainer stated that ICE had initiated an investigation to determine whether defendant was subject to removal. In May 2007, defendant was convicted in state court of the assault, and sentenced to 150 days. Thereafter, defendant pled guilty to being found in the U.S. after deportation. Guideline § 4A1.1(e) adds two criminal history points if the defendant is “found” less than two years after release from imprisonment for a prior conviction. The Fourth Circuit rejected the criminal history points, ruling that defendant was “found” in the U.S. on March 3, the day ICE served the Immigration Detainer on the county jail, so he committed the present federal offense before his conviction and sentence for the state assault. U.S. v. Sosa-Carabantes, 561 F.3d 256 (4th Cir. 2009).

4th Circuit rules that felony stalking conviction was crime of violence. (340) Defendant pled guilty to being a felon in possession of a firearm, and received an enhanced offense under §2K2.1 based on the district court’s finding that his prior North Carolina felony stalking conviction was a crime of violence. The Fourth Circuit affirmed. To be guilty under the North Carolina statute, (1) defendant’s conduct had to be willful, (2) defendant had to be guilty of willfully stalking “on more than one occasion,” (3) defendant had to be found following or being in the presence of his victim, placing his victim in fear of bodily injury, (4) his conduct had to be sufficiently egregious to have placed a “reasonable” person in such fear, and (5) defendant had to place his victim in fear of bodily injury “with the intent to cause emotional distress.” The panel found it “difficult, if not impossible, to conceive how this conduct could have been carried out without threatening by word or action the use of physical force.” Further, the offense would qualify as a violent felony under the ACCA—it was purposeful, violent and aggressive, and posed a risk similar to if not greater than the enumerated offense of burglary or extortion. U.S. v. Seay, 553 F.3d 732 (4th Cir. 2009).

4th Circuit holds that nonconsensual sex is “forcible sex offense” even without physical force. (340) Defendant was convicted of illegally reentering the country after deportation. The district court applied a 16-level crime of violence enhancement based on his Maryland conviction for second-degree rape. The information charging defendant with the rape offense failed to specify which of the three subparts defendant had violated. Two of the subparts clearly qualified as crimes of violence (statutory rape and rape by force or threat of force). A third subpart applies if the victim is mentally defective, mentally capacitated, or physically helpless, and the defendant knew or should have been aware of that. The Fourth Circuit held that Maryland offense of second-degree rape, which criminalize nonconsensual sex absent the element of physical force, is nonetheless a “forcible sex offense,” and thus a crime of violence under the Guidelines. Although the use of force necessarily involves a degree of compulsion, it can be effected through “power” or “pressure,” which do not necessary have physical components. U.S. v. Chacon, 533 F.3d 250 (4th Cir. 2008).

4th Circuit approves aggregating prior sentences to calculate 16-level crime of violence enhancement. (340) Defendant pled guilty to illegal reentry into the U.S. after deportation. Guideline § 2L1.2(b)(1) provides for a 12-level enhancement if the defendant was previously convicted of a drug trafficking offense for which the “sentence imposed” was 13 months or less, and 16 levels if the “sentence imposed” was greater than 13 months. The district court found that defendant’s three prior felony drug trafficking convictions, all of which were committed on the same day and arose out of the same set of events, should be aggregated per § 4A1.2(a)(2) to calculate the “sentence imposed.” This resulted in the application of the 16-level enhancement under § 2L1.2(b)(1). The Fourth Circuit affirmed. The district court did not abuse its discretion in looking beyond the provisions specifically cross-referenced in § 2L1.1. Although § 4A1.2(a)(2) is not referenced by § 2L1.1, the commentary to § 4A1.1 says that the definitions and instructions in § 4A1.2 govern the computation of criminal history points. Therefore §§ 4A1.1 and 4A1.2 must be read together. U.S. v. Martinez-Varela, 531 F.3d 298 (4th Cir. 2008).

4th Circuit holds Georgia child molestation conviction was sexual abuse of minor. (340) Defendant pled guilty to illegal reentry following deportation. The district court found that his prior conviction under Georgia law for felony attempted child molestation (Ga. Code Ann. 16-6-4), was a crime of violence, and increased his sentence by 16 levels under §2L1.2. The Fourth Circuit affirmed, holding that the offense categorically constituted “sexual abuse of a minor,” and therefore qualified as a crime of violence. “Sexual abuse of a minor” involves the misuse or mistreatment of a minor for a purpose associated with sexual gratification; it does not require the use of physical force, and it does not require physical or psychological injury to the child. The Georgia child molestation statute applies when a defendant “does any immoral or indecent act to or in the presence of or with any child under the age of 14 years with the intent to arouse of satisfy the sexual desires of either the child or the person.” A violation of this statute clearly constitutes “sexual abuse of a minor” because every violation of the statute necessarily involves the defendant’s commission of an immoral or indecent act in a child’s presence with the intent to arouse either the defendant or the child. U.S. v. Diaz-Ibarra, 522 F.3d 343 (4th Cir. 2008).

4th Circuit holds Texas possession of cocaine was not aggravated felony. (340) Defendant, convicted of illegal reentry after deportation, received an eight-level enhancement for having been deported after an “aggravated felony” conviction. The enhancement was based on defendant’s prior conviction in Texas for possession of cocaine. In Lopez v. Gonzales, 549 S.Ct. 47 (2006), the Supreme Court held that conduct made a felony under state law but a misdemeanor under the Controlled Substances Act is not “a felony punishable under the Controlled Substances Act,” and therefore not an “aggravated felony” for purposes of the Immigration and Nationality Act (INA). Under Lopez, a state offense constitutes a “felony punishable under the Controlled Substances Act” only if it proscribes conduct punishable as a felony under that federal law. The Fourth Circuit held that, under Lopez, the aggravated felony enhancement here was error. Defendant’s Texas drug possession offense, though a felony under state law, was not punishable as a felony under the federal Controlled Substances Act, and thus could not satisfy the definition of an aggravated felony in 8 U.S.C. § 1101(a)(43)(B). U.S. v. Matamoros-Modesta, 523 F.3d 260 (4th Cir. 2008).

4th Circuit holds that nonconsensual sex is “forcible sex offense” even without physical force. (340) Defendant was convicted of illegally reentering the country after deportation. The district court applied a 16-level crime of violence enhancement based on his Maryland conviction for second-degree rape. The information charging defendant with the rape offense failed to specify which of the three subparts defendant had violated. Two of the subparts clearly qualified as crimes of violence (statutory rape and rape by force or threat of force). A third subpart applies if the victim is mentally defective, mentally capacitated, or physically helpless, and the defendant knew or should have been aware of that. The Fourth Circuit held that Maryland offense of second-degree rape, which criminalize nonconsensual sex absent the element of physical force, is nonetheless a “forcible sex offense,” and thus a crime of violence under the Guidelines. Although the use of force necessarily involves a degree of compulsion, it can be affected through “power” or “pressure,” which do not necessary have physical components. U.S. v. Chacon, 533 F.3d 250 (4th Cir. 2008).

4th Circuit holds that upward variance was reasonable where defendant was member of violent street gang. (340) Defendant pled guilty to illegally reentering the country after deportation, resulting in an advisory guideline range of zero to six months. The district court found that a variance was warranted because, while defendant came back to the country primarily because of family considerations, he was a member of a violent street gang, and he began associating with fellow gang members upon his return to the U.S. The Fourth Circuit ruled that the 18-month sentence imposed by the district court was reasonable. The variance sentence of an additional 12 months was necessary to account for the fact that defendant not only illegally reentered the U.S. but also continued his association with a violent street gang after his reentry. The district court was understandably seeking to stymie defendant’s ability to associate with the gang, with the hope that further removing him from the violent lures of the gang would increase his chance of turning his life around. U.S. v. Hernandez-Villanueva, 473 F.3d 118 (4th Cir. 2007).

4th Circuit holds that need to avoid disparities between fast-track and non-fast-track defendants not did not justify downward departure. (340) Defendant was convicted of illegally reentering the U.S. after being deported, 8 U.S.C. § 1326(a). The district court imposed a below-guidelines variance sentence, primarily to avoid an “unwarranted sentence disparity” between defendant and defendants that had participated in a fast-track program. See U.S.S.G. § 5K3.1. The Fourth Circuit held that the district court erred in imposing a below-guideline sentence to account for sentences received by defendants participating in fast-track programs. The disparity between a fast-track and a non-fast-track sentence is not “unwarranted” within the meaning of 18 U.S.C. § 3553(a)(6). Congress and the Sentencing Commission have explicitly sanctioned such disparities. U.S. v. Perez-Pena, 453 F.3d 236 (4th Cir. 2006).

4th Circuit holds that 46-month guideline sentence for illegally reentering the U.S. was reasonable. (340) Defendant pled guilty to unlawful reentry after deportation following an aggravated felony conviction. The district court sentenced him to 46 months’ imprisonment, a term within the properly calculated advisory guideline range. The Fourth Circuit upheld the sentence as reasonable. First, the § 3553(a) factors clearly supported the reasonableness of the sentence. The reentry of an ex-felon is a serious offense for which Congress has seen fit to impose a statutory maximum sentence of 20 years. Defendant was a “chronic offender” for the crime of his conviction – he illegally reentered the country at least three separate times after being deported. Although significant sentencing disparities exist between “fast-track” and non-”fast-track” districts, defendant did not show that, in light of the other § 3553(a) factors, such disparities compelled the district court to impose a below-guideline sentence. Merely pointing out the existence of such disparities with no reference to the characteristics of the particular defendant does not render a within-guideline sentence unreasonable. U.S. v. Montes-Pineda, 445 F.3d 375 (4th Cir. 2006).

4th Circuit holds that Maryland cocaine possession is not aggravated felony. (340) Section 2L1.2(b)(1)(C) provides for an eight-level enhancement if the defendant was deported after a conviction for an aggravated felony; the enhancement is only four levels if the defendant was deported after a conviction for “another felony” pursuant to § 2L1.2(b) (1)(D). The Fourth Circuit held that defendant’s Maryland conviction for cocaine possession was not an aggravated felony for sentencing purposes. The district court found that regardless of Maryland’s classification of the offense as a misdemeanor, the offense qualified as an aggravated felony, since the maximum sentence was more than one year. However, U.S.S.G. § 2L1.2(b)(1)(C) directs a court, albeit circuitously, to the definition of “felony” in 21 U.S.C. § 802(13). That statute clear defines “felony” as those offenses “classified” as such by the jurisdiction in which the crime occurred. Since defendant’s cocaine possession offense was not classified by Federal or State law as a felony, the offense was not a “felony,” as defined by § 802(13) and was not an “aggravated felony” for purposes of § 2L1.2(b)(1)(C). Judge Shedd dissented. U.S. v. Amaya-Portillo, 423 F.3d 427 (4th Cir. 2005).

4th Circuit holds that state drug felony that was misdemeanor under federal law was aggravated felony. (340) Defendant was convicted of illegally reentering the country after deportation. At issue was whether his state conviction for possession of an unknown quantity of cocaine could qualify as an aggravated felony under § 2L1.2 if it was a felony under the applicable state law but was punishable only as a misdemeanor under the Controlled Substances Act, (CSA), 21 U.S.C. § 801. The Fourth Circuit held that simple possession of drugs, if a felony under state law, can constitute an aggravated felony. The term “aggravated felony” is defined in 8 U.S.C. § 1101(a)(43) to include “a drug trafficking crime (as defined in section 924(c) of Title 18).” Section 924(c)(2), in turn, states that the term “drug trafficking crimes” means “any felony punishable under the Controlled Substances Act.” The CSA defines the term “felony” as “any Federal or State offense classified by applicable Federal or state law as a felony.” 21 U.S.C. § 802(13). Thus, a state conviction for possession of cocaine can constitute a felony under § 924(c)(2) if the offense is classified as a felony under the law of the relevant state, even though the same offense would only be punishable as a misdemeanor under federal. Moreover, simple possession of an unknown quantity of cocaine is punishable under the CSA. Because defendant’s conviction for felony possession of cocaine satisfied both elements of § 924(c) and thereby constituted a drug trafficking crime, he committed an aggravated felony as defined in Note 2 of § 2L1.2. U.S. v. Wilson, 316 F.3d 506 (4th Cir. 2003), abrogated by Lopez v. Gonzales, 127 S.Ct. 625 (2006).

4th Circuit says defendant must meet Note 5 criteria for departure from aggravated felony increase. (340) Defendant was convicted of being an illegal alien found in the U.S. after deportation, and received a 16-level aggravated felony enhancement based on a prior conviction for misdemeanor death by motor vehicle. § 2L1.2 (b)(1)(A). Note 5 authorizes a downward departure from the aggravated felony enhancement where (1) the defendant has only one prior felony offense, (2) the offense was not a crime of violence or a firearms offense, and (3) the term of imprisonment did not exceed one year. Although defendant did not meet this criteria (his sentence for the aggravated felony exceeded one year), the district court nonetheless departed downward, finding that his prior conviction differed in kind from the offenses the Sentencing Commission intended to subject to the aggravated felony enhancement. The Fourth Circuit reversed, holding that because defendant did not meet the Note 5 criteria, the court lacked authority to depart based on the lack of seriousness of the aggravated felony. The Commission took into account the varying severities of aggravated felonies when it promulgated Note 5 and “defined by heartland of § 2L1.2 by exclusion.” The seriousness of the prior aggravated felony was “adequately taken into account” by the Sentencing Commission when § 2L1.2 was promulgated. U.S. v. Alejo-Alejo, 286 F.3d 711 (4th Cir. 2002).

4th Circuit affirms increases for smuggling aliens and holding them hostage. (340) Defendants were involved in smuggling Chinese nationals into the United States and holding them hostage until they paid a “transportation” fee. The Fourth Circuit, without discussion, upheld (1) a § 2A4.1(b)(6) enhancement because some of the Chinese nationals held hostage were minors, (2) a § 2A4.1(b)(2)(B) enhancement because a hostage suffered serious bodily injury, and (3) a § 2A4.1(b)(1) enhancement for demanding ransom. U.S. v. Chen, 131 F.3d 375 (4th Cir. 1997).

4th Circuit applies 1990 effective date only to date of re-entry after deportation, not predicate aggravated felony. (340) In 1988, defendant was convicted in South Africa of dealing cannabis. He later entered the U.S., but was deported in 1989 due to the drug conviction. In 1991, he illegally re-entered the country, and in 1994 pled guilty to re‑entry after deportation, in violation of 8 U.S.C. § 1326. That statute provides for an enhanced penalty if the defendant was deported following conviction of an aggravated felony. In 1990, the definition of an aggravated felony was amended to include foreign drug trafficking convictions. However, Congress specified that the amendment applied only to “offenses” committed after November 29, 1990. Relying on U.S. v. Campbell, 94 F.3d 125 (4th Cir. 1996), the Fourth Circuit held that the word “offenses” in the effective date provision referred to the date of the illegal entry, not the predicate aggravated felony. Thus defendant was properly convicted of re-entry after deportation following conviction of an aggravated felony. Moreover, the drug crime was an aggravated felony even though defendant did not receive a five year sentence. The requirement that the term of imprisonment be at least five years applies only to crimes of violence. U.S. v. Adkins, 102 F.3d 111 (4th Cir. 1996).

4th Circuit applies immigration definition of aggravated felony to felonies committed before effective date. (340) Defendant, an illegal alien, was convicted of manslaughter in 1989 and deported in 1991. He illegally reentered the country and was arrested in 1994. The Fourth Circuit upheld a 16-level enhancement under § 2L1.2(b)(2). Even though defendant committed the prior aggravated felony before the 16-level enhancement was added on November 1, 1991, the “offense” for purposes of the guideline is the re-entry after deportation, not the prior felony. Moreover, even though the new statutory definition of aggravated felony in 8 U.S.C. 1101(a)(43) does not apply to felonies committed before November 29, 1990, that effective date provision affects only the maximum penalty under 8 U.S.C. § 1326, it does not affect the guidelines. Thus, predicate aggravated felonies may be used to enhance the sentence even if they were committed before the 1990 effective date for the statutory definition. U.S. v. Campbell, 94 F.3d 125 (4th Cir. 1996).

4th Circuit says erroneous INS form did not equitably estop government from imposing higher sentence. (340) When defendant was deported, he received an INS form that incorrectly advised him that the maximum sentence he could receive upon illegal reentry was two years. The statute had recently been amended to provide for up to 15 years’ imprisonment for unlawful entry by an alien deported following an aggravated felony conviction. The Fourth Circuit held that the government was not equitably estopped from imposing a sentence greater than that mentioned in the INS form. Defendant had fair warning from the face of the form that unauthorized reentry was a felony. The statute under which he was convicted provided adequate notice of the potential penalty for reentry. Given the form’s clear reference to the statute, any reliance by defendant was not “reasonable.” More importantly, a calculated decision to commit a felony cannot be termed “reasonable reliance.” U.S. v. Agubata, 60 F.3d 1081 (4th Cir. 1995).

4th Circuit permits double and triple counting of prior aggravated felony (340) Defendant was convicted of reentering the United States after deportation. Because he was deported after a conviction for an aggravated felony, he received a 16-level enhancement under § 2L1.2(b)(2). He argued that the use of the felony conviction to enhance his base offense level and assess six criminal history points amounted to impermissible double counting. The 4th Circuit agreed that in a literal sense the aggravated felony was counted twice, but found nothing impermissible about it. Double counting is permissible under the guidelines except where it is expressly prohibited. For the same reason, the court also rejected defendant’s complaint that the prior conviction was “triple counted,” under § 4A1.1 in that he received three points because his sentence exceeded one year and one month, two points because he was on probation for this felony at the time of the instant offense, and one point because the instant offense was committed less than two years after his release from prison for the aggravated felony. U.S. v. Crawford, 18 F.3d 1173 (4th Cir. 1994).

4th Circuit holds 8 U.S.C. 1326(b) is a sentence enhancement, not a separate offense. (340) Defendant was indicted and convicted of reentering the United States after deportation in violation of 8 U.S.C. § 1326. Because he was deported after a conviction for an aggravated felony, his maximum sentence was increased from two to 15 years under § 1326(b), and he received a 16-level enhancement under § 2L1.2(b)(2). Defendant argued that § 1326(b) was a separate criminal offense for which he could not be sentenced since the prior aggravated felony was not charged in his indictment. The 4th Circuit rejected this, holding that § 1326(b) is a sentence enhancement provision, not a separate criminal offense. The court specifically rejected the 9th Circuit’s view in U.S. v. Campos-Martinez, 976 F.2d 589 (9th Cir. 1992) that section (b) is a separate crime. U.S. v. Crawford, 18 F.3d 1173 (4th Cir. 1994).

5th Circuit uses state court records to find California conviction qualified as drug trafficking offense. (340) Defendant was convicted of illegal reentry after deporta¬tion. His sentence was increased by 12 levels under §2L1.2(b)(1)(B) based on the court’s finding that his prior California conviction for possession for sale of a controlled substance involved the sale of methamphet¬amine, and thus qualified as a felony drug trafficking offense. Defendant challenged this enhancement for the first time on appeal. The Fifth Circuit found no plain error. Defendant’s prior conviction was under Cal. Health & Safety Code §11378. The parties agreed that §11378, a broadly written proscription, did not qualify as an aggravated felony for federal sentencing purposes. How¬ever, a conviction for possession of methamphet¬amine for sale clearly qualified as a drug trafficking offense under guideline §2L1.2(b). The case was distinguishable from U.S. v. Lopez–Cano, 516 F.Appx. 350 (5th Cir. 2013), an unpublished case which reversed a sentence enhancement based on the same California statute. The state court records here were different than those submitted in Lopez-Cano. Here, the criminal complaint specifically alleged a violation of §11378 based on meth, and unlike Lopez-Cano, there was no indication that the complaint was superseded by an information or indictment. Moreover, in Lopez-Cano, the claim of error was preserved. U.S. v. Castellon-Aragon, __ F.3d __ (5th Cir. Nov. 24, 2014) No. 13-41244.

5th Circuit says prior Texas indecency with a minor by contact was sexual abuse of a minor. (340) Defendant pled guilty to being illegally present in the U.S. after deportation, and received a 16-level crime of violence under § 2L1.2(b)(1)(A)(ii) based on his prior Texas conviction of indecency with a child. He argued that the indecency statute punished conduct that did not constitute “abuse” within the meaning of “sexual abuse of a minor.” The Fifth Circuit, using the “modified categorical approach,” concluded that defendant had been convicted of the offense of indecency with a minor by contact, a violation of Texas Penal Code § 21.11(a)(1). That offense was a crime of violence for purposes of the § 2L1.2(b)(1)(A)(ii) enhancement. U.S. v. Elizondo-Hernandez, __ F.3d __ (5th Cir. June 9, 2014) No. 13-40887.

5th Circuit uses modified categorical approach to find Texas burglary was crime of violence. (340) Defendant received a 16-level crime of violence increase under § 2L1.2(b)(1)(A)(ii) based on his 2009 conviction for burglary, under Texas Penal Code § 30.02(a)(1) and (a)(3). These sections apply to a person who, without the consent of the owner, “(1) enters a habitation … not then open to the public, with intent to commit a felony … or (3) enters a … habitation and commits or attempts to commit a felony.” The Fifth Circuit found that § 30.02(a) was a divisible statute, with one alternative constituting the generic offense of burglary of a dwelling, and another alternative not meeting this definition. The generic offense of burglary of a dwelling required entering a habitation with the intent to commit a crime. Section 30.02(a)(1) expressly required this intent, while § 30.02(a)(3) did not. Because the statute was divisible, the panel used the modified categorical approach to determine whether the offense qualified as a crime of violence. The indictment and judgment were unhelpful, but defendant’s written judicial confession, a pre-printed template under which defendant signed his name, established that defendant was convicted under § 30.02(a)(1). U.S. v. Conde-Castaneda, 7523 F.3d 172 (5th Cir. 2014).

5th Circuit holds that Louisiana aggravated battery, narrowed to exclude poisoning, was crime of violence. (340) Defendant, convicted of being unlawfully present in the U.S. after deportation, received a 16-level crime of violence enhancement under § 2L1.2(B)(1)(a)(ii) based on a previous Louisiana conviction for aggravated battery. Louisiana defines the offense as a battery committed with a dangerous weapon, which includes poison. Because administering poison does not necessarily entail the use of destructive or violent physical force, the statute as a whole did not categorically qualify as a crime of violence. However, the Louisiana statute was divisible, so the Fifth Circuit used the modified categorical approach to find that defendant’s conviction qualified as a crime of violence. The charging document excluded the possibility that defendant committed the aggravated battery by means of poisoning. Touching an individual with a deadly weapon creates a sufficient threat of force to qualify as a crime of violence. Thus, the enhancement was proper here. U.S. v. Herrera-Alvarez, 753 F.3d 132 (5th Cir. 2014).

5th Circuit counts prior voluntary departure as deportation for enhancement purposes. (340) Defendant pled guilty to using a fraudulent visa as proof of permission to enter the United States. 18 U.S.C. § 1546(a). At sentencing, his offense level was increased by two levels under § 2L2.2(b)(1) for a previous deportation. He challenged the increase, arguing that after a 2013 determination that he was removable, he voluntarily departed in lieu of removal pursuant to 8 U.S.C. § 1229c(a)(1). He contended that because he voluntarily departed he had not “been deported” for the purposes of § 2L2.2(b)(1). The Fifth Circuit disagreed, holding that defendant’s prior voluntary departure counted as a deportation for enhancement purposes. Although a formal removal order did not issue, § 2L2.2(b)(1) specifically mentions the possibility that an illegal alien has been voluntarily deported. Defendant failed to demonstrate how his narrow construction would allow any plausible definition of voluntary deportation. U.S. v. Murillo-Acosta, 751 F.3d 682 (5th Cir. 2014).

5th Circuit finds alien smuggler could reasonably foresee co-conspirators’ sexual assaults on female aliens. (340) Defendant was convicted of harboring illegal aliens for commercial advantage or private financial gain. The district court applied several enhancements based on his co-conspirators’ sexual assaults of two female aliens, including § 2L1.1(b)(5) for brandishing a dangerous weapon (a knife), § 2L1.1(b)(6) for intentionally or recklessly creating a substantial risk of serious bodily injury, and § 2L1.1(b)(7) for causing substantial bodily harm. The district court adopted the PSR’s finding that it was reasonably foreseeable to defendant that his co-conspirators might brandish a weapon or sexually assault the women. The court gave a detailed explanation for its finding of foreseeability, describing how the victims were separated from the men and taken to a trailer house that was not a common stash house used for the other aliens, and were given alcoholic drinks. The Fifth Circuit affirmed. The district court relied on the testimony from the two victims and the PSR. Defendant had the burden of proving the PSR unreliable and materially untrue. His self-serving statements of innocence were insufficient to rebut the PSR. Although defendant argued that the subsection (b)(5) and (b)(6) enhancements double counted the same conduct, any error was harmless. The district court stated that it would have given defendant the same sentence, the statutory maxi¬mum, even if it was mistaken in it application of the guidelines. U.S. v. Gutierrez-Mendez, 752 F.3d 418 (5th Cir. 2014).

5th Circuit holds that sexual offense in the third degree was crime of violence. (340) Defendant was convicted of illegal reentry, and received a 16-level enhancement under § 2L1.2 (b)(1)(A)(ii) based on the district court’s finding that his prior conviction under § 3-307(a)(2) of Maryland’s criminal code was a crime of violence. This provision bars a person from having sexual contact with a victim under 14 if the person is more than four years older than the victim. After reviewing § 3–307(a)(3), the Fifth Circuit was satisfied that a violation of that section constituted sexual abuse of a minor under the plain-meaning approach. Sexual abuse of a minor is one of the enumerated crimes of violence in Note 1(B)(iii) to § 2L1.2. Further, a crime of violence includes an attempt to commit a crime of violence. Note 5 to § 2L1.2. U.S. v. Chacon, 742 F.3d 219 (5th Cir. 2014).

5th Circuit rules that Washington residential burglary was a crime of violence. (340) The district court imposed an increase under § 2L1.2(b)(1)(A) for a prior crime of violence based on the defendant’s 2009 conviction for residential burglary under WASH. REV. CODE Ann. § 9A52.025. Defendant argued that the offense was not generic burglary of a dwelling, because the statute defined “dwelling” more liberally than permitted by Taylor v. U.S., 495 U.S. 575 (1990). The Fifth Circuit rejected the argument, holding that Washington residential burglary was consistent with the generic definition of burglary, and was not overbroad. The Washington statute defined a “dwelling” as “any building or structure … which is used or ordinarily used by a person for lodging.” A “building” included “any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein….” Thus, the statute recognized that a dwelling need not be a traditional structure, but must be some kind of venue “used for lodging.” So, although a certain venue may not qualify as a Taylor-approved building or structure, it may still serve as a residence, and thus constitute a dwelling. Although the Ninth Circuit reached a contrary conclusion in U.S. v. Wenner, 351 F.3d 969 (9th Cir. 2003), the court disagreed with Wenner. U.S. v. Guerrero-Navarro, 737 F.3d 976 (5th Cir. 2013).

5th Circuit holds Texas burglary of a habitation was not a crime of violence. (340) Defendant received a 16-level increase under § 2L1.2(b)(1)(A)(ii) based on the judge’s finding that his prior Texas conviction for burglary of a habitation was a crime of violence. He argued for the first time on appeal that the Texas conviction was under subsection (a)(3) of Texas Penal Code § 30.02, and thus did not constitute a crime of violence. The Government conceded that the district court plainly erred, and the Fifth Circuit agreed. The central issue was whether defendant was convicted under subsection (a)(1) or (a)(3) of § 30.02. A conviction under § 30.02(a)(1) is generic “burglary of a dwelling” and is therefore a crime of violence. However, § 30.02(a)(3) lacks the element of specific intent to commit a crime at the time of entry. The government failed to prove that defendant’s conviction was under § 30.02(a)(1), and thus it did not prove that defendant was convicted of a crime of violence. U.S. v. Castaneda, 740 F.3d 169 (5th Cir. 2013).

5th Circuit holds that state misdemeanor for third-degree sexual abuse of minor was aggravated felony. (340) Defendant pled guilty to illegal reentry after deportation, and received an eight-level enhancement under § 2L1.2(b) (1)(C) based on a prior conviction for an aggravated felony. The aggravated felony was a New York state misdemeanor conviction for third-degree sexual abuse of a 15-year-old girl. Defendant argued that the misdemeanor could not be an aggravated felony, but the Fifth Circuit affirmed. An aggravated felony is defined in 8 U.S.C. § 1101(a)(43) to include “murder, rape, or sexual abuse of a minor.” A misdemeanor conviction can constitute an aggravated felony for purposes of § 1101(a)(43). See U.S. v. Urias–Escobar, 281 F.3d 165 (5th Cir. 2002) (prior misdemeanor conviction could be an aggravated felony under 8 U.S.C. § 1101(a)(43)(F)). U.S. v. Ramirez, 731 F.3d 351 (5th Cir. 2013).

5th Circuit finds New Jersey third degree aggravated assault was not crime of violence. (340) Defendant received a 16-level crime of violence enhancement under § 2L1.2(b)(1)(A)(ii) based on a prior New Jersey conviction for third degree aggravated assault. The Model Penal Code defines aggravated assault as involving “serious bodily injury,” while the New Jersey statute defines it as involving “significant bodily injury.” In U.S. v. Ramirez, 557 F.3d 200 (5th Cir. 2009), the Fifth Circuit held that the district court did not plainly err in ruling that a New Jersey conviction for third degree aggravated assault was a crime of violence under § 2L1.2. Here, on de novo review, the Fifth Circuit held that that New Jersey third degree aggravated assault was not a crime of violence. It was clear that the New Jersey legislature was carving out a lesser included offense when it enacted third degree aggravated assault and only required significant bodily injury. Causing or attempting to cause significant bodily injury does not fall within the common sense meaning of aggravated assault. The difference between serious bodily injury and significant bodily injury was not a “slight imprecision.” The error was not harmless. U.S. v. Martinez-Flores, 720 F.3d 293 (5th Cir. 2013).

5th Circuit approves serious bodily injury increase for forcing smuggled aliens to engage in prostitution. (340) Defendant was convicted of child sex trafficking and harboring illegal aliens based on a scheme in which illegal minor female aliens were smuggled under false pretenses from Honduras to work in defendant’s bar, and tend to his customers. Guideline § 2L1.1 (b)(6) applies “[i]f the offense involved intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.” The district court applied the increase because five of the 11 undocumented aliens engaged in prostitution after being coerced and/or otherwise forced into it at defendant’s bar. Defendant argued that the only victim under the age of 18 who had sex in connection with her job at his bar was 17 years old and, therefore, above the age of consent in Texas. The Fifth Circuit upheld the increase. The district court’s determination that defendant’s actions intentionally or recklessly created a substantial risk of serious bodily injury to the aliens by coercing them to engage in prostitution, regardless of their age, was not clearly erroneous. U.S. v. Garcia-Gonzalez, 714 F.3d 306 (5th Cir. 2013).

5th Circuit upholds as reasonable guideline sentence for illegal reentry. (340) Defendant pled guilty to illegally reentering the country after deportation. He requested a departure under § 5K2.12 or a variance based on the coercion and duress he suffered upon being deported to El Salvador. He also requested a departure or variance based on his difficulty assimilating in El Salvador. The district court refused to depart, and sentenced him to 46 months, the bottom of his advisory guideline range. The Fifth Circuit held that the sentence was both procedurally and substantively reasonable. First, the court satisfied its obligation under § 3553(c) to explain its sentence. The court reviewed all of the relevant materials, and after considering extensive arguments from both parties, chose to impose a sentence that fell between the parties’ suggested results. The district court weighed defendant’s arguments for a below-guidelines sentence, but found they only warranted a sentence at the bottom of the range. Second, sentences within a properly-calculated guidelines range enjoy a presumption of reasonableness. All of the mitigating factors defendant raised were considered by the district court prior to and during sentencing. U.S. v. Diaz-Sanchez, 714 F.3d 289 (5th Cir. 2013).

5th Circuit holds that state sexual battery conviction was crime of violence. (340) Defendant pled guilty to illegal reentry after deportation, and received a 16-level enhancement under § 2L1.2(b)(1)(A)(ii) based on his prior Florida convictions for burglary and sexual battery. The Fifth Circuit affirmed, agreeing that his sexual battery conviction constituted a crime of violence. The offense fell within the scope of the enumerated categories of “forcible sex offenses,” in Note 1(B)(iii) to § 2L1.2. The Florida sexual battery statute applies to “a person who commits sexual battery upon a person 12 years of age or older, without that person’s consent.” Because, under the Florida statute, consent to be valid must be “intelligent, knowing, and voluntary,” Fla. Stat. Ann. § 794.011(1)(a), defendant plainly was convicted of an offense proscribing sexual conduct “where consent … is not given or … is involuntary.” Thus, his conviction fell squarely within the guidelines category of “forcible sex offenses.” U.S. v. Garza-Guijan, 714 F.3d 332 (5th Cir. 2013).

5th Circuit upholds supervised release term for illegal reentry defendant. (340) Defendant was convicted of illegally reentering the U.S. after deportation, and was sentenced to imprisonment and two years of supervised release. He objected to the supervised release term, contending that recent amendments to §5D1.1 prohibit a district court from adding a term of supervised release to a removable-alien defendant’s sentence unless it specifically finds that the case is “extraordinary.” The Fifth Circuit concluded that the district court properly imposed the term of supervised release “based on the facts and circumstances of [this] particular case.” Note 5 to § 5D1.1. The amendments to § 5D1.1 preserved district courts’ authority to impose terms of supervised release as they deem necessary to provide “an added measure of deterrence and protection.” Under U.S. v. Dominguez–Alvarado, 695 F.3d 324 (5th Cir. 2012), § 5D1.1 obligates district courts to give some “particularized explanation” and “adhere to the Rule 32 process” in imposing supervised release. This requirement is not onerous. The district court here supplied a sufficiently particularized explanation of its decision to impose supervised release. U.S. v. Becerril-Pena, 714 F.3d 347 (5th Cir. 2013).

5th Circuit says increases for prostitution of minor alien were not improper double counting. (340) Defendant was convicted of child sex trafficking and alien-harboring. He challenged a two-level increase under § 2L1.1(b)(6) and a six-level increase under § 2L1.1(b)(8)(B) based on the same alleged conduct – the prostitution of minor aliens. The Fifth Circuit affirmed both enhancements, because they did not necessarily implicate the same conduct. Five of the 11 harbored illegal female aliens were coerced and/or otherwise forced into prostitution. Four of them were under the age of 18. Section 2L1.1(b)(6) applies to offenses that create a substantial risk of bodily injury, and therefore, it could be upheld based on the prostitution of a single adult female. Section 2L1.1(b)(8)(B) applies specifically to harbored, undocumented alien minors who engage in prostitution. In any event, double-counting is prohibited only if the particular guideline specifically forbids it. U.S. v. Garcia-Gonzalez, 714 F.3d 306 (5th Cir. 2013).

5th Circuit, en banc, holds that “minor” for purposes of “sexual abuse of a minor” refers to person under 18. (340) Defendant pled guilty to illegal reentry after deportation. He argued that his prior conviction for sexual assault of a child under Texas Penal Code § 22.011(a)(2) was not a crime of violence under § 2L1.2(b)(1)(A)(ii) because that statute criminalized conduct that fell outside of the “generic, contemporary meaning” of “statutory rape” and “sexual abuse of a minor.” The Fifth Circuit, en banc, adopted a plain-meaning approach to determining the generic contemporary meaning of non-common law offenses enumerated in the guidelines. Under this plain meaning approach, the en banc court held that for the purposes of § 2L1.2(b)(1)(A)(ii), the meaning of “minor” in “sexual abuse of a minor” is a person under the age of majority, or under 18. The court further held that the age of consent for the purposes of “statutory rape” is the age of consent as defined by statute in the jurisdiction where the prior conviction was obtained. The crime of violence enhancement was properly applied to defendant, who was convicted of sexual assault of a child after engaging in sexual conduct with a 16-year old victim when he was 19 years of age. Texas law defines a child at the age of 17. U.S. v. Rodriguez, 711 F.3d 541 (5th Cir. 2013).

5th Circuit says any error in increase for prior drug trafficking offense did not warrant reversal. (340) Defendant pled guilty to illegal reentry after deportation, and received a 12-level increase under § 2L1.2(b)(1)(B) for a previous felony drug trafficking conviction under § 58–37–8(1)(a)(ii) of the Utah Criminal Code. The district court considered the underlying probable cause statement which indicated that the offense involved an offer to sell cocaine to an undercover officer. Defendant challenged the enhancement for the first time on appeal. The Fifth Circuit ruled that any sentencing error did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. First, there was no error in reviewing the probable cause statement attached to the charging document. Second, defendant chose not to raise the argument below, even though he and his counsel had previously raised the same argument on appeal of a different sentence. Finally, the 51-month sentence had a strong foundation. Defendant had three prior illegal reentry conviction, used aliases to evade detection, and had violated the country’s drug laws. Defendant also had been convicted of domestic violence and carrying a concealed firearm. U.S. v. Duque-Hernandez, 710 F.3d 296 (5th Cir. 2013).

5th Circuit holds Georgia conviction for cruelty to children was not a crime of violence. (340) Defendant pled guilty to illegal reentry into the United States, and received a crime of violence enhancement based on his conviction under Georgia Code § 16–5–70(b) for first-degree cruelty to children. The Fifth Circuit reversed, finding that the offense was not a crime of violence because the Georgia statute did not require a showing of physical force. The Georgia statute of conviction provides, “Any person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” The Georgia courts have required proof of the following elements: (1) the minority of the child, (2) the child suffers mental or physical pain, (3) the pain was cruel or excessive, (4) the defendant caused the pain, (5) and malice. Thus, “the use, attempted use, or threatened use of physical force” is not necessary to commit the crime. Specifically, a person can commit first-degree child cruelty and maliciously inflict excessive pain upon a child by depriving the child of medicine or by some other act of omission that does not involve the use of physical force. U.S. v. Resendiz-Moreno, 705 F.3d 203 (5th Cir. 2013).

5th Circuit upholds six-month upward departure for previous immigration encounters and removals. (510) Defendant pled guilty to illegal reentry of a deported alien, resulting in an advisory guideline range of zero to six months. The district court departed upward to 12 months based on defendant’s five previous immigration encounters and four prior removals. The Fifth Circuit held that the 12-month sentence was reasonable. The district court gave an individualized assessment of the § 3553(a) factors, and determined that in light of defendant’s five previous immigration encounters and four prior removals, the maximum sentence under the guidelines range was inadequate to deter him from reentering the United States illegally. The district court did not abuse its discretion because it was permitted to consider the need for deterrence as a sentencing factor and defendant’s previous immigration encounters and removals in departing upward from his sentencing range. See § 4A1.3(a)(2)(C), (E); § 3553(a)(2)(B). U.S. v. Zelaya-Rosales, 707 F.3d 542 (5th Cir. 2013).

5th Circuit holds Texas conviction for burglary of habitation was crime of violence. (340) Defendant received a 16-level crime of violence enhancement under § 2L1.2(b)(1)(A)(ii) based on a Texas conviction for burglary of a habitation with intent to commit theft. The statute of conviction, Tex. Penal Code § 30.02(a)(1), makes it a crime to enter into a habitation or building not open to the public, without consent of the owner, intending to commit a felony, theft, or assault. The Texas definition of “owner” includes a person who has “a greater right to possession of the property than the actor.” Because a person can be convicted of burglary of a habitation even if he has a legitimate right to possess the property, defendant argued that the Texas statute was broader than the generic definition of burglary of a dwelling. The Fifth Circuit held that Texas’s definition of “owner” did not take the offense outside the definition of generic burglary. It was persuaded by the reasoning in a recent case that was not certified for publication. Although the case was not precedential, the panel agreed with its reasoning. “Merely maintaining an inferior possessory interest in a habitation does not extinguish the potential violence that may result when a person enters a habitation with intent to commit theft.” U.S. v. Morales-Mota, 704 F.3d 410 (5th Cir. 2013).

5th Circuit rules Florida theft conviction was not theft under aggravated offense definition. (340) Defendant challenged the district court’s finding that his Florida theft conviction was a generic theft offense and therefore an aggravated felony under § 2L1.2(b)(1)(C). The Fifth Circuit held that Florida statute 812.014(1) encompasses conduct that is broader than generic theft, and there was insufficient information to conclude that defendant had the requisite level of intent for a generic theft offense. The generic, contemporary meaning of “theft offense” requires an intent to deprive the owner of the benefit of the stolen goods. Subsection (a) of the Florida statute satisfies the “intent to deprive” element, but subsection (b), which applies when a defendant “appropriates the property,” does not. Merely “appropriating the property” to one’s “own use” does not show an “intent to deprive the owner of the benefit … of the stolen goods.” U.S. v. Medina-Torres, 703 F.3d 770 (5th Cir. 2012).

5th Circuit holds federal drug trafficking conspiracy was “drug trafficking offense.” (340) Defendant pled guilty to illegal reentry following deportation. He had earlier been convicted of conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 846. At sentencing for the illegal reentry, the court applied a 16-level enhancement under § 2L1.2(b)(1)(A)(i) because it found that his earlier crime was a “drug trafficking offense.” He challenged the enhancement for the first time on appeal, arguing that it only applies to a “conspiracy” that requires an overt act, while a violation of § 846 does not have that requirement. The Fifth Circuit rejected this argument. The analysis defendant argued for was one that generally applies to deciding whether a defendant’s prior state conviction was for an offense enumerated in the guidelines. However, this analysis did not apply here. The guidelines themselves state that a conviction for a conspiracy to commit a federal drug trafficking offense will justify application of the enhancement. U.S. v. Rodriguez-Escareno, 700 F.3d 751 (5th Cir. 2012).

5th Circuit rules Texas conviction for indecency with a child by sexual contact was sexual abuse of a minor. (340) Defendant pled guilty to illegal reentry after deportation, and received a 16-level crime of violence enhancement under guideline section 2L1.2(b)(1)(A)(ii) based on a prior Texas conviction for indecency with a child by sexual contact. The district court concluded that the Texas offense constituted “sexual abuse of a minor,” which is an enumerated crime of violence under § 2L1.2. The Fifth Circuit affirmed. Although defendant argued that the Texas offense was broader than the generic, contemporary definition of sexual abuse of a minor, this circuit has previously held that the offense defined in Tex. Penal Code § 21.11(a)(1) constitutes sexual abuse of a minor for purposes of the immigration guidelines. U.S. v. Quiroga-Hernandez, 698 F.3d 227 (5th Cir. 2012).

5th Circuit finds Texas conviction for sexual assault of child was a crime of violence. (340) Defendant argued that the district court erred when it applied a 16-level crime of violence enhancement based on his prior conviction for sexual assault of a child, under Tex. Penal Code § 22.011(a)(2). The Fifth Circuit ruled that this argument was foreclosed by circuit precedent. Although defendant argued that the Texas offense was broader than the generic, contemporary definitions of sexual abuse of a minor and statutory rape, this court previously held that for purposes of guideline section 2L1.2(b)(1)(A)(ii), the offense defined in Tex. Penal Code § 22.011(a)(2) constitutes “statutory rape.” U.S. v. Rodriguez, 698 F.3d 220 (5th Cir. 2012), rehearing en banc ordered by U.S. v. Rodriguez, 701 F.3d 1080 (5th Cir. 2012), and on rehearing en banc, U.S. v. Rodriguez, 711 F.3d 541 (5th Cir. 2013).

5th Circuit finds court had jurisdiction to change sentence during sentencing hearing. (340) At sentencing, the court orally sentenced defendant to 71 months, but then discovered for the first time that defendant could understand English. This caused the court to question the veracity of some of defendant’s statements. When the court admonished him, defendant interrupted the court and questioned the length of his sentence. The court then imposed a 108-month sentence. The Fifth Circuit affirmed, rejecting defendant’s argument that that the district court lacked jurisdiction to “re-sentence” him to 108 months after initially sentencing him to 71 months. The district court’s initial oral pronouncement of sentence did not constitute a binding sentence, and did not strip the court of jurisdiction to change its initial formulation. The 108-month sentence was reasonable. Defendant interrupted the court multiple times, questioned the length of his sentence, and challenged the district court’s assessment of his criminal history and attitude. The panel deferred to the district court’s finding that defendant was disrespectful to the court after it initially announced a 71-month sentence. U.S. v. Gerezano-Rosales, 692 F.3d 393 (5th Cir. 2012).

5th Circuit says Florida prior for lewd act on child was enumerated crime of violence. (340) Defendant pled guilty to being unlawfully present in the U.S. after deportation. He received a 16-level enhancement under § 2L1.2 based on the district court’s finding that his 1992 Florida conviction of “lewd, lascivious act upon a child under 16 years of age” constituted a crime of violence. The Fifth Circuit found that the conviction constituted the enumerated offense of “sexual abuse of a minor,” and thus qualified as a crime of violence. Even assuming, as defendant argued, that not all subdivisions of the Florida statute constituted sexual abuse of a minor, district court properly found that the judgment and the information provided the specific facts that defendant had sexual intercourse with a child under the age of 16. Sexual intercourse with a minor meets the definition of sexual abuse of a minor. U.S. v. Romero-Rosales, 690 F.3d 409 (5th Cir. 2012).

5th Circuit holds that Oklahoma kidnapping was not crime of violence. (340) Defendant pled guilty to attempted illegal reentry after deportation, and received a 16-level enhancement based on the court’s finding that her prior Oklahoma kidnapping conviction was a crime of violence. The Fifth Circuit held that the district court erred because the Oklahoma offense did not constitute any of the enumerated offenses that are crimes of violence; nor did it have an element of “physical force,” as that term was defined in Johnson v. U.S., 130 S.Ct. 1265 (2010), to mean “force capable of causing physical pain or injury to another person.” The Oklahoma kidnapping offense did not constitute the enumerated offense of “kidnapping,” because it could be committed without proof of two elements that are part of the generic, contemporary definition of kidnapping: (1) substantial interference with the victim’s liberty; and (2) circumstances exposing the victim to substantial risk of bodily injury or confinement as a condition of involuntary servitude. Under Johnson, the phrase “physical force” means violent force; that is, force capable of causing physical pain or injury to another person. The pertinent force element of defendant’s kidnapping conviction was “forcibly seizes and confines another.” “Forcibly” could be satisfied by conduct other than the type of force stated in Johnson. U.S. v. Najera-Mendoza, 683 F.3d 627 (5th Cir. 2012).

5th Circuit holds Arkansas aggravated assault conviction was not a crime of violence. (340) Defendant pled guilty to attempting to illegally reenter the U.S. after deportation, and received a 16-level crime of violence enhancement under § 2L1.2(b)(1)(A)(ii) based on his prior Arkansas conviction for aggravated assault. The Fifth Circuit reversed, holding that the state crime at issue was not the enumerated offense of “aggravated assault,” because it did not comport with the generic, contemporary understanding of aggravated assault. The Model Penal Code requires that a defendant cause or attempt to cause serious bodily injury to another, whereas the Arkansas statute requires that a defendant purposely engage in conduct that creates a substantial danger of death or serious physical injury to another person. The Arkansas offense did not require proof of an underlying assault, and therefore did not comport with the generic, contemporary definition of that crime. The Arkansas statute did not require any contact or injury or attempt or threat of offensive contact or injury. For the same reason, the offense did not constitute a crime of violence under the residual clause. Assault, as commonly understood, by its nature requires proof of the use, attempted use, or threatened use of offensive contact against another person. U.S. v. Esparza-Perez, 681 F.3d 228 (5th Cir. 2012).

5th Circuit holds that “term of imprisonment” refers to actual sentence imposed. (340) Defendant was convicted of illegal reentry after deportation, and received an eight-level increase under § 2L1.2(b)(1)(C) based on the district court’s finding that his Indiana theft conviction was an aggravated felony. For that conviction defendant was sentenced to one year and six months, but his prison term was suspended in favor of probation. An aggravated felony is defined to include “a theft offense … for which the term of imprisonment [sic] at least one year.” 8 U.S.C. § 1101(a)(43). Defendant argued that the language “term of imprisonment” meant the mandatory minimum sentence for a given offense rather than the “sentence” imposed on a particular defendant. The Fifth Circuit disagreed with this interpretation, holding that “term of imprisonment” in § 1101(a)(43)(G) refers to the actual sentence imposed. Defendant’s interpretation ignored § 1101(a)(48)(B), which provides that any reference to a term of imprisonment or a sentence “is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension … in whole or in part.” U.S. v. Asencio-Perdomo, 674 F.3d 444 (5th Cir. 2012).

5th Circuit finds it “unfair” to grant plain error relief where defense counsel conceded age of victim. (340) Defendant received a 16-level crime of violence increase based on a 2009 Florida conviction for sexual activity with a minor. He argued for the first time on appeal that the enhancement was erroneous because “use of force” was not an element of the Florida statute, and the offense did not qualify as the enumerated offense of either statutory rape or sexual abuse of a minor. The Fifth Circuit found any error was not plain. The offense did not qualify under the physical force portion of the definition because the Florida statute did not include the use of force as an element of the offense. The statute also failed to comply with the “generic, contemporary meaning” of statutory rape, since it criminalized sexual activity with 16- and 17-year olds. However, defense counsel conceded at sentencing that the victim was 14. Given this concession, the panel found it would be “unfair” to grant plain error relief. If defense counsel had argued that the offense did not constitute sexual abuse of a minor, the government would have been entitled to prove, from the Florida conviction records or otherwise, the victim’s true age. U.S. v. Chavez-Hernandez, 671 F.3d 494 (5th Cir. 2012).

5th Circuit holds that Oklahoma domestic assault and battery was not crime of violence. (340) Defendant pled guilty to illegally reentering the United States after deportation. He received a 16-level increase based on an Oklahoma conviction for domestic assault and battery, which the district court concluded was a crime of violence under § 2L1.2(b)(1)(A)(ii). He argued that an offense under the Oklahoma statute, OKLA. STAT. tit. 21, § 644C, did not require the use of physical force because it could be committed with the slightest unconsensual touching, and that precedent precluded the court from relying on the specific conduct underlying his conviction. The Fifth Circuit agreed, holding that the § 644C offense was not a crime of violence. The Oklahoma Court of Criminal Appeals has held that “only the slightest touching is necessary to constitute the ‘force or violence’ element of battery.” In addition, the Tenth Circuit has held that the Oklahoma assault and battery statute “reaches behavior that does not have as an element the use, attempted use, or threatened use of physical force against the person of another ….” Thus, while most 644C prosecutions might arise from offensive touching that threatens or inflicts bodily injury, under the required categorical inquiry, a 644C offense is not a crime of violence under § 2L1.2(b)(1)(A)(ii). U.S. v. Miranda-Ortegon, 670 F.3d 661 (5th Cir. 2012).

5th Circuit reviews for plain error where counsel failed to explain objection to 16-level increase. (340) Defendant was convicted of being illegally present in the US after being deported, and received a 16-level crime of violence enhancement based on a 2009 Florida conviction for sexual activity with a minor. Although defense counsel objected to the enhancement, he failed to articulate why he objected to the enhancement. When the court stated its characterization of the prior crime as a “plus 16” enhancement, defense counsel did not object. The Fifth Circuit held that defendant did not adequately preserve his objection to the enhancement, and reviewed only for plain error. Based on what little was said and written in the trial court, the judge could not have understood that defendant, who admitted an ongoing sexual relationship with the victim, would be making an extended legal argument against the enhancement. At least, defendant should have alerted the court that he was challenging whether the Florida statute inherently qualified as a statutory rape or sexual abuse of a minor enumerated offense under § 2L1.1. U.S. v. Chavez-Hernandez, 671 F.3d 494 (5th Cir. 2012).

5th Circuit rejects crime of violence increase where no removal order was issued after prior conviction. (340) Defendant was deported in March 1989. He illegally reentered the U.S., and in November, 1990, he was convicted of rape and sentenced to 18 years. He was released in 2008. The U.S. Border Patrol was not notified of his release, and no removal order was issued or reinstated following the 1990 conviction. In 2009, he was discovered by Border Patrol agents, and taken into custody. He pled guilty to one count of illegal reentry following deportation, in violation of 8 U.S.C. § 1326(a), (b)(2). Guideline § 2L1.2(b)(1)(A)(ii) provides for a 16-level enhancement if the defendant unlawfully remained in the United States, following a removal order issued after a conviction for a crime of violence. The Fifth Circuit rejected the crime of violence enhancement, because no removal order was issued after his 1990 conviction, nor had any prior removal order been reinstated. A defendant alleged to have unlawfully remained in the United States following a qualifying conviction is subject to the § 2L1.2(b) (1)(A) enhancement only when a removal order is issued or reinstated after that conviction. U.S. v. Nevares-Bustamante, 669 F.3d 209 (5th Cir. 2012).

5th Circuit says prior Texas attempted sexual assault conviction was “generic” attempt. (340) Defendant pled guilty to illegal reentry after deportation, and received a 16-level crime of violence enhancement under § 2L1.2(b)(1)(A) based on a 1995 Texas conviction for attempted sexual assault on a child. The district court found the crime constituted an attempt to commit the enumerated offenses of statutory rape and sexual abuse of a minor. On appeal, the Fifth Circuit rejected defendant’s argument that the Texas “attempt” statute failed to satisfy the generic, contemporary definition of attempt, which requires a “substantial step.” Under Fifth Circuit case law, the substantial step test requires an act that both is strongly corroborative of the actor’s criminal purpose and more than mere preparation. Defendant did not show that, as applied by a state court, the Texas attempt statute swept more broadly than the generic substantial step test for attempt. He did not identify a case in which a Texas court applied the Texas attempt statute to criminalize conduct that would not satisfy the substantial step test. U.S. v. Sanchez, 667 F.3d 555 (5th Cir. 2012).

5th Circuit finds sexual assault on a child was crime of violence despite Texas definition of child as person younger than 17. (340) Defendant pled guilty to illegal reentry after deportation, and received a 16-level crime of violence enhancement under § 2L1.2(b)(1)(A) based on a Texas conviction for attempted sexual assault on a child. Defendant argued that sexual assault on a child under Texas law was not a crime of violence because relevant Texas law defines “child” as a person younger than 17, while the majority of U.S. jurisdictions set the age of consent for sexual activity at 16. Thus, he argued that the completed offense of sexual assault on a child under Texas law includes behavior beyond the ordinary, contemporary, and common definition of the enumerated crimes of statutory rape or sexual abuse of a minor. The Fifth Circuit found this argument foreclosed by U.S. v. Alvarado–Hernandez, 465 F.3d 188 (5th Cir. 2006), which held that Texas Penal Code § 22.011(a)(2) met a common sense definition of statutory rape even though it defined “child” as a person younger than 17. In addition, the court has held that the crime of sexual assault on a child under Texas Penal Code § 22.011(a)(2) constitutes sexual abuse of a minor. See U.S. v. Castro–Guevarra, 575 F.3d 550 (5th Cir. 2009). U.S. v. Sanchez, 667 F.3d 555 (5th Cir. 2012).

5th Circuit affirms guideline sentence for illegal reentry as reasonable. (340) Defendant was convicted of illegal reentry after deportation, and was sentenced to 48 months. The Fifth Circuit rejected defendant’s argument that the court inadequately explained its sentence. The district court had before it at sentencing the PSR and defendant’s objections to the PSR, as well as defendant’s sentencing memorandum that includeed the exhibits that defendant contended demonstrated his entitlement to a below-guidelines sentence. In rendering its sentence, the district court noted that it had considered defendant’s arguments, and concluded that “a sentence at the mid of the guideline range [was] needed to promote respect for the law and deterrence.” The statement of reasons in this case did not differ significantly from statements that have been upheld in similar cases. The 48-month sentence, which fell within the middle of defendant’s 41-51-month guideline range, was also substantively reasonable. Defendant’s disagreement with the sentence was not sufficient to rebut the presumption of reasonableness that attaches to a within-guidelines sentence. U.S. v. Sanchez, 667 F.3d 555 (5th Cir. 2012).

5th Circuit rules that manufacturing a controlled substance was not a “drug trafficking offense.” (340) Defendant pled guilty to illegal reentry after removal, and received a 16-level enhancement under § 2L1.2 based on the district court’s finding that his prior conviction for manufacturing a controlled substance, in violation of California Health and Safety Code § 11379.6, was a “drug trafficking offense.” The Fifth Circuit reversed, holding that the conviction was not a drug trafficking offense, because some acts that would violate § 11379.6 would not be “drug trafficking offenses” under § 2L1.2. The California statute applies to production of a precursor with knowledge that it will be used to produce a controlled substance, even if the defendant had no intent to make a controlled substance. The statute would criminalize the production of a precursor for sale to a third party who uses it to manufacture a controlled substance. However, a plain reading of the term “manufacture” for purposes of § 2L1.2 seems to exclude production of a precursor without an intent eventually to produce the finished product. U.S. v. Reyes-Mendoza, 665 F.3d 165 (5th Cir. 2011).

5th Circuit holds that staleness of prior conviction did not destroy presumption of reasonableness for guideline sentence. (340) Defendant pled guilty to illegal reentry after deportation. He argued that his 27-month guideline sentence was substantively unreasonable because it improperly considered a “stale” prior conviction. He contended that the presumption of reasonableness should not apply to his within-guidelines sentence on appellate review because the guideline upon which it was based, § 2L1.2, was flawed and was not the result of empirical evidence or study. The Fifth Circuit held that the staleness of a prior conviction used in the proper calculation of a guideline sentence does not render a sentence substantively unreasonable, and does not destroy the presumption of reasonableness that attaches to such sentences. The district court did not abuse its discretion by imposing a 27-month sentence. U.S. v. Yielding, 657 F.3d 688 (8th Cir. 2011).

5th Circuit says theft conviction was aggravated felony despite probation. (340) Defendant was convicted of illegal reentry. He received an aggravated felony enhancement under § 2L1.2(b) (1)(C) based on a prior theft conviction. Under 8 U.S.C. § 1101(a)(43)(G, a theft offense is an aggravated felony if the term of imprisonment is at least one year. Here, defendant was given a two-year suspended sentence and placed on probation for five years. His probation was later revoked but the sentencing court reduced his sentence to 180 days instead of the original two-year term. Defendant argued that because his theft sentence was reduced to a term of less than one year, it was not an aggravated felony. The Fifth Circuit disagreed. For purposes of § 1101(a)(43) (G), the “term of imprisonment” is the period of incarceration ordered “regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.” If defendant had completed his five-year probation, the court could still have treated the conviction as an aggravated felony even though defendant served no jail time. U.S. v. Rios-Cortes, 649 F.3d 332 (5th Cir. 2011).

5th Circuit holds Colorado conviction for unlawful sexual contact was crime of violence. (340) Defendant pled guilty to illegally reentering the country after deportation, and received a 16-level increase based on the district court’s finding that his previous Colorado criminal conviction for unlawful sexual contact under Colorado Revised Statutes § 18-3-404(1)(a) was a crime of violence under § 2L1.2(b)(1)(A). On appeal, the Fifth Circuit agreed, ruling that § 18-3-404(1)(a) was a forcible sex offense, and thus qualified as a crime of violence. The statute applies to any defendant who “knowingly subjects a victim to any sexual contact” if the defendant knows that “the victim does not consent.” Consent is defined as “cooperation in act or attitude… ” The commentary to the guidelines defines a forcible sex offense as “including where consent to the conduct is not given or is not legally valid.” Note 1(B)(iii) to § 2L1.2. Thus, defendant’s conviction for unlawful sexual contact fell squarely within the commentary’s definition of a forcible sex offense. U.S. v. Diaz-Corado, 648 F.3d 290 (5th Cir. 2011).

5th Circuit says Arkansas second-degree sexual assault with forcible compulsion or of helpless person was crime of violence. (340) Defendant pled guilty to illegal reentry. He received a 16-level enhancement under § 2L1.2 (b)(1)(A)(ii) based on a prior conviction for a crime of violence, an Arkansas conviction for sexual assault in the second degree, § 5-14-125 of the Arkansas Code. The Fifth Circuit affirmed, holding that the two possible sections under which defendant was convicted both qualified as crimes of violence. Subsection (a)(1) applies to sexual conduct by “forcible compulsion.” A party violates subsection (a)(1) if he engages in sexual conduct by using physical force or certain express or implied threats Both acts are crimes of violence under the guidelines. Subsection (a)(2) criminalizes the sexual assault of any party who is “physically helpless, mentally defective, or mentally incapacitated.” The guidelines’ definition of forcible sex offense includes sexual acts “where consent to the conduct is involuntary.” See Note 1(B)(iii) to § 2L1.2. A violation of subsection (a)(2) fits this definition. U.S. v. Herrera, 647 F.3d 172 (5th Cir. 2011).

5th Circuit holds that prior D.C. robbery conviction was for enumerated offense of robbery. (340) Defendant was convicted of illegal reentry, in violation of 8 U.S.C. § 1326. The district court applied a 16-level enhancement under § 2L1.2(b) (1)(A)(ii) based on its finding that defendant’s 2006 robbery conviction in the District of Columbia was a crime of violence. The Fifth Circuit held that defendant’s conviction was for the enumerated offense of robbery, and thus qualified as a crime of violence. Although the D.C. statute also covered “stealthy snatching,” the record showed that defendant’s prior conviction was not for “stealthy snatching.” At sentencing, the government entered the plea agreement, indictment, and judgment from defendant’s robbery conviction. The proffer of facts attached to the robbery plea agreement stated that defendant approached someone and “asked for five dollars,” and then pulled out a long knife, and held it to the victim’s side. Thus, the facts in the plea agreement established that his conduct fell well within the generic definition of robbery. The district court did not err in relying on the proffer. Although defendant intended to enter an Alford plea to the robbery charge, the record contained independent verification of the necessary facts. U.S. v. Flores-Vasquez, 641 F.3d 667 (5th Cir. 2011).

5th Circuit rules defendant was “released from imprisonment” upon transfer from BOP to ICE for deportation. (340) Defendant was convicted of being found in the U.S after deportation, and sentenced to prison and a three-year term of supervised release. Upon completion of his prison term, in October 2005, he was transferred from the custody of the Bureau of Prisons (BOP) to the custody of Immigration and Customs Enforcement (ICE). He was deported on October 28, 2005, and on October 11, 2008, he was arrested in the U.S. The probation officer moved to revoke his supervised release. Defendant argued that the district court did not have jurisdiction to hear the revocation case because the revocation warrant issued after his term of supervised release had expired. A “term of supervised release commences on the day the person is released from imprisonment.” 18 U.S.C. § 3583(i). The Fifth Circuit held that defendant was released from imprisonment the moment his administrative detention began, i.e., the moment he was transferred from the BOP custody to ICE custody to await deportation. Because the record was not clear as to the exact date on which defendant was released from imprisonment, the panel remanded for further fact-finding. U.S. v. Garcia-Rodriguez, 640 F.3d 129 (5th Cir. 2011).

5th Circuit says North Carolina attempted common-law robbery was crime of violence. (340) The Fifth Circuit has previously decided that common-law robbery under North Carolina law qualifies as a crime of violence. Defendant argued that his prior North Carolina conviction for attempted common-law robbery did not qualify because North Carolina courts have interpreted attempt liability more broadly than its generic, contemporary meaning. The generic, contemporary test asks whether a defendant has taken a “substantial step” towards carrying out the act. In contrast, North Carolina cases have stated that “slight acts in furtherance of the design will constitute an attempt.” The Fifth Circuit held that while defendant raised the “theoretical possibility” that North Carolina’s attempted common-law robbery offense would sweep more broadly than the generic contemporary meaning of attempted robbery, he did not show a “realistic probability” that it would do so. Defendant did not identify a single North Carolina case that he believed would have been decided differently under the “substantial step” approach. Similarly, the facts of his own case did not fall outside the reach of the “substantial step” test. Threatening violence in a person’s presence is surely a “substantial step” toward robbing the individual. U.S. v. Hernandez-Galvan, 632 F.3d 192 (5th Cir. 2011).

5th Circuit holds that Texas evading arrest with a motor vehicle was “aggravated felony.” (340) Defendant pled guilty to illegally re-entering the U.S. following deportation, and received an eight-level aggravated felony enhancement under § 2L1.2(b)(1)(C) based on a prior Texas conviction for evading arrest with a motor vehicle. Tex. Penal Code Ann. § 38.04(b)(1). The Fifth Circuit found that its decision in U.S. v. Harrimon, 568 F.3d 531 (5th Cir. 2009), compelled affirmance of the enhancement. Harrimon held that the offense was a “violent felony” under § 924(e)(2)(B)(ii) because it was typically “purposeful, violent and aggressive.” The crime “typically involves violent force which the arresting officer must in some way overcome,” and “will typically lead to a confrontation with the officer being disobeyed, a confrontation fraught with risk of violence.” U.S. v. Sanchez-Ledezma, 630 F.3d 447 (5th Cir. 2011).

5th Circuit rules Texas conviction for delivering controlled substance was drug trafficking offense. (340) Defendant pled guilty to illegal reentry following a previous deportation. At his sentencing hearing in February 2009, defendant received a 16-level enhancement for a prior felony drug trafficking conviction based on his Texas state conviction for delivery of a controlled substance. Previous cases have held that this offense did not qualify as a drug trafficking enhancement under previous versions of the Sentencing Guidelines, since the offense included a mere “offer to sell.” However, the Guidelines were amended in November 2008 to include an offer to sell in the definition of a drug trafficking offense. Applying the 2008 edition of the Sentencing Guidelines, the Fifth Circuit held that defendant’s conviction for delivery of a controlled substance qualified as a drug trafficking offense. U.S. v. Marban-Calderon, 631 F.3d 210 (5th Cir. 2011).

5th Circuit finds Indiana sexual battery was crime of violence under revised Guidelines. (340) Defendant was convicted of unlawfully entering or remaining the U.S. after deportation, and received a 16-level increase under § 2L1.2 (b)(1)(A)(ii) based on the district court’s finding that his Indiana conviction for sexual battery qualified as a “crime of violence.” The statute applied to a conviction where the victim was “so mentally disabled or deficient that consent to the touching cannot be given.” Under previous Fifth Circuit cases, such a conviction would arguably not qualify as a crime of violence. See, e.g. U.S. v. Luciano-Rodriguez, 442 F.3d 320 (5th Cir. 2006). However, in 2008, before defendant was sentenced, the guidelines were amended to specify that the definition of crime of violence includes sexual offenses “where the consent to the conduct … is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced.” § 2L1.2, Note 1(B)(iii). The Fifth Circuit held that the effect of the revision was to make its prior precedent inapplicable to sentences under the revised § 2L1.2(b)(1)(A)(ii). U.S. v. Rodriguez-Juarez, 631 F.3d 192 (5th Cir. 2011).

5th Circuit rejects reckless endangerment increase for aliens in cargo area of SUV. (340) Border Patrol agents observed a Ford Explorer driven by defendant cross over a highway median, make a U-turn, and pull to a stop on the shoulder of the highway. Five illegal aliens exited the vehicle and took off running. Defendant pled guilty to unlawfully transporting illegal aliens. The Fifth Circuit held that the district court erred by enhancing defendant’ sentence under § 2L1.1(b)(6) for recklessly endangering the lives of the illegal aliens. The court’s finding that there were three aliens “stacked” in the Explorer’s cargo area did not support the increase. Previous cases have held that transporting aliens in the cargo area of a van, without more, did not justify the reckless-endangerment enhancement. Riding in the cargo area of an SUV is no more dangerous than riding the cargo area of a minivan. There was nothing in the record to suggest that the alien’s ability to quickly exit the vehicle was impeded. The government failed to establish that defendant endangered the five aliens by making a U-turn across the highway. U.S. v. Rodriguez, 630 F.3d 377 (5th Cir. 2011).

5th Circuit holds Georgia child molestation conviction was crime of violence. (340) Defendant pled guilty to illegal reentry after deportation, and received a § 2L1.2(b)(1)(A)(ii) enhancement based on the court’s finding that his Georgia conviction for child molestation was a crime of violence. The Fifth Circuit held that Georgia’s child molestation statute, Georgia Code § 16-6-4(a), applied to “sexual abuse of a minor,” which is an enumerated crime of violence. To constitute “sexual abuse of a minor,” the conduct must (1) involve a minor, (2) be “sexual,” and (3) be “abusive.” The conduct proscribed by the Georgia statute satisfied these requirements. The statute applies to conduct with a child under the age of 16, and therefore involves a minor. An act is “sexual” when it “must have sexual arousal or gratification as its purpose.” Here, a violation of the Georgia statute is “sexual” because it must occur “with the intent to arouse or satisfy the sexual desires of either the child or the person.” Finally, the proscribed conduct was “abusive” because the prohibited act involved “taking undue or unfair advantage of the minor and causing such minor psychological—if not physical—harm.” U.S. v. Olalde-Hernandez, 630 F.3d 372 (5th Cir. 2011).

5th Circuit says California first-degree burglary was aggravated felony under illegal reentry guideline. (340) Defendant pled guilty to illegally reentering the country following deportation, and received an aggravated felony enhancement under § 2L1.2(b)(1)(C) based on his prior conviction for first-degree burglary under California Penal Code §§ 459 & 460(a). The Fifth Circuit affirmed, holding that that the conviction was a “crime of violence” under 18 U.S.C. § 16(b), and therefore an “aggravated felony” under § 2L1.2(b)(1)(C). The offense has as an element the entry into an inhabited dwelling house, so by its nature, it involved a substantial risk that physical force against the person or property of another would be used in the course of committing the offense. Cases holding that burglary under Cal. Penal Code § 459 is not “burglary of a dwelling” under § 2L1.2(b)(1)(A) (ii) were not controlling, because the definition of a “crime of violence” in § 2L1.2(b)(1)(A)(ii) does not carry the same meaning that it carries in 18 U.S.C. § 16. U.S. v. Echeverria-Gomez, 627 F.3d 971 (5th Cir. 2010).

5th Circuit rules willful infliction of corporal injury is crime of violence; making criminal threats is not. (340) Defendant was convicted of illegal reentry into the United States, and received a 16-point increase based on prior California convictions for making criminal threats and willful infliction of corporal injury. The Fifth Circuit held that the offense of willful infliction of corporal injury qualified as a crime of violence. California Penal Code § 237.5(a) “penalizes the intentional use of force that results in a traumatic condition.” However, the offense of making a criminal threat is not a crime of violence. The use, attempted use, or threatened use of physical force is not an element of the offense because it is possible under California law to obtain a conviction without proof of the threatened us of physical force against the person of another. Although the court erred by relying on the criminal threat conviction in adjusting defendant’s sentence, the error did not affect his substantial rights. The 16-level adjustment was appropriate solely on the basis of defendant’s conviction for willfully inflicting a corporal injury. U.S. v. Cruz-Rodriguez, 625 F.3d 274 (5th Cir. 2010).

5th Circuit says Georgia burglary was crime of violence under illegal reentry guideline. (340) Defendant pled guilty to illegal reentry after a conviction for an aggravated felony. He received a 16-level crime of violence enhancement based on a 2002 conviction for burglary in Georgia. Defendant argued that the offense did not constitute the enumerated offense of “burglary of a dwelling” because Georgia courts interpret “dwelling” to include structures within the curtilage of the building. The Fifth Circuit held that the Georgia burglary constituted a crime of violence, and affirmed. In the past, Georgia courts have interpreted “dwelling house” to include particular buildings within the curtilage. However, none of the Georgia opinions interpreting the current version of the Georgia burglary statute have held that a “dwelling house” includes structures within the curtilage. The current statute has other provisions that allow for conviction if entry is into certain other buildings, but those structures are not “dwelling houses.” U.S. v. Martinez-Garcia, 625 F.3d 196 (5th Cir. 2010).

5th Circuit says plea precluded defendant from arguing that conviction was not aggravated felony. (340) Defendant had been convicted of three crimes: (1) accessory to murder in 2001; (2) illegal reentry with an enhanced sentence for a previous aggravated felony in 2004; and (3) the current conviction for illegal reentry. The district court applied an eight-level enhancement under § 2L1.2(b)(1)(C) because defendant was removed from the U.S. in 2007 after her 2004 aggravated felony offense of illegal reentry. Defendant argued that the enhancement was improper because neither of her prior convictions were aggravated felonies. The Fifth Circuit held that defendant’s guilty plea to reentry precluded her from arguing that the previous reentry conviction was not an aggravated felony. The judgment stated that she pled guilty to violating 8 U.S.C. § 1326(a), Illegal Re-Entry after Deportation, with sentencing enhancements pursuant to 8, U.S.C. § 1326(b)(2). Defendant thus admitted that she had been removed “subsequent to a conviction for commission of an aggravated felony.” Moreover, the underlying accessory to murder conviction was an aggravated felony. U.S. v. Gamboa-Garcia, 620 F.3d 546 (5th Cir. 2010).

5th Circuit allows consideration of judicial confession on remand despite mandate rule. (340) Defendant pled guilty to illegal reentry, in violation of 8 U.S.C. § 1326. In his initial appeal, defendant argued that his Texas conviction for delivery of a controlled substance was not an aggravated felony under § 2L2.1(b)(1)(C) because there was no proof that he actually possessed a controlled substance. The government conceded that the proof was insufficient, and the Fifth Circuit vacated and remanded. At resentencing, the district court reapplied the eight-level aggravated felony enhancement, relying on defendant’s judicial confession about the offense. The Fifth Circuit held that the court’s consideration, on remand, of defendant’s judicial confession, did not violate the mandate rule. The government did not concede in the earlier proceeding that only a four-level enhancement was appropriate. The appellate opinion did not limit the ability of either party to present or the district court to consider other evidence. Additionally, the district court found the judicial confession to be reliable, and defendant did not demonstrate that the court’s finding was clearly erroneous. U.S. v. Carales-Villalta, 617 F.3d 342 (5th Cir. 2010).

5th Circuit says immigration sentence cannot be enhanced for prior sentence of probation even though probation was later revoked. (340) Defendant pled guilty to being unlawfully present in the U.S. after having been deported for an aggravated felony. At sentencing, the district court applied a 16-level enhancement under § 2L1.2 on the ground that he had reentered the U.S. after being convicted of a drug trafficking felony for which the sentence imposed exceeded 13 months. Defendant argued that the enhancement was improper, because at the time he was deported, and at the time he reentered the country, he had only received a sentence of probation. It was not until he had been present in the country illegally for two years that his probation was revoked and he was given a sentence of imprisonment that exceeded 13 months. The Fifth Circuit held that § 2L1.2 was ambiguous and thus must be read in defendant’s favor. Defendant’s interpretation was the most natural reading of § 2L1.2 and its commentary – it was counterintuitive that a guideline enhancement designed to reflect the nature of a defendant’s illegal reentry offense could be triggered by unrelated conduct that occurred long after the reentry. U.S. v. Bustillos-Pena, 612 F.3d 863 (5th Cir. 2010).

5th Circuit says Texas conviction for injury to a child was not a crime of violence. (340) Defendant pled guilty to being unlawfully present in the U.S. following deportation, and received a 16-level crime of violence enhancement under § 2L1.2(a) based on prior conviction for injury to a child, under Tex. Penal Code, § 22.04(a). Defendant had pled guilty to intentionally and knowingly causing injury to a child younger than 15 by striking her with a weed eater. Nonetheless, the Fifth Circuit held that the injury to a child conviction was not a crime of violence, and reversed. The case was controlled by U.S. v. Calderon-Pena, 383 F.3d 254 (5th Cir. 2004) (en banc), which held that the offense of child endangerment under Tex. Penal Code. Ann. § 22.041(c) was not a crime violence under § 2L1.2. The en banc court ruled that the statute does not have the use, attempted use, or threatened use of physical force against the victim’s person as a required element. For example, an offense under § 22.04 can be committed by intentional act without the use of physical force by putting poison or another harmful substance in a child’s food or drink. U.S. v. Andino-Ortega, 608 F.3d 305 (5th Cir. 2010).

5th Circuit says transporting child under sleeping area of truck did not create substantial risk. (340) Border patrol agents, searching defendant’s tractor trailer at a checkpoint, found two adult illegal aliens in the sleeping area. They also observed an eight-year old child remove herself from the space under the sleeping area and exit the tractor-trailer without assistance. The space where she was hiding was about 15 inches high, 15 inches deep, and 36 inches wide. It was solid on three sides, and the front was covered by a vinyl curtain. The Fifth Circuit rejected a § 2L1.1(b)(6) enhancement for “intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.” While the space under the sleeping area was small, so was the child. Moreover, the child was not separated from the driver’s cab area, was near her mother and the driver, and could communicate with others. There was no lack of oxygen, and there was no finding that she was exposed to extreme temperatures. Moreover, the child exited the tractor-trailer without assistance. U.S. v. Torres, 601 F.3d 303 (5th Cir. 2010).

5th Circuit upholds criminal history point for relevant conduct that occurred after release from prison. (340) Defendant was deported in 2002. In May 2008, he was arrested for DWI under an alias. During his incarceration, he informed ICE agents that he had entered the country illegally, but failed to disclose his true identity or his status as a prior deportee. On June 29, 2008, he was released to the custody of the county jail on an outstanding warrant. In July, ICE agents again interviewed defendant and he again gave a false identity. The government later discovered his true identity and charged him with illegal reentry after deportation. The district court assessed a criminal history point under § 4A1.1(e) for committing the illegal reentry offense less than two years following his June 29, 2008 release from imprisonment on the DWI sentence. Defendant argued that the § 4A1.1(e) point was assessed in error because he completed the illegal reentry before his imprisonment for the DWI offense. The Fifth Circuit affirmed. During the July 2008 interview with ICE agents, defendant concealed his true identity. This constituted relevant conduct that occurred within two years after his release from prison on June 29, 2008. U.S. v. Gonzalez-Guzman, 597 F.3d 695 (5th Cir. 2010).

5th Circuit affirms despite claim that immigration enhancement violated ex post facto clause. (340) Defendant sentence was increased by 16 levels under § 2L1.2(b)(1)(A)(i) for a prior drug trafficking conviction. He conceded that the prior conviction met the definition of a drug trafficking offense under the 2008 guidelines, but claimed that the use of such Guidelines violated the ex post facto clause. Because he raised this issue for the first time on appeal, it was reviewed only for plain error. The Fifth Circuit ruled that in light of cases in other circuits holding that the now-advisory guidelines did not raise ex post facto concerns, any error in applying the 2008 guidelines was not “plain.” The court did not determine whether ex post facto claims arising from the application of evolving sentencing guidelines are viable after Booker. However, the court noted that earlier decisions in U.S. v. Demaree, 459 F.3d 791 (7th Cir. 2006) and U.S. v. Rodarte-Vasquez, 488 F.3d 316 (5th Cir. 2007) have held that the now-advisory Guidelines should not raise ex post facto concerns. U.S. v. Castillo-Estevez, 597 F.3d 238 (5th Cir. 2010).

5th Circuit finds insufficient evidence that prior conviction was for drug trafficking, but error was not plain. (340) Defendant pled guilty to being found in the U.S. following deportation. The district court enhanced his sentence under § 2L1.2(b)(1)(A)(i) based on a previous conviction for use of a telephone to facilitate the commission of a drug offense, 21 U.S.C. § 843(b). He argued that the government failed to prove that the drug offense he facilitated was a “drug trafficking offense,” and the First Circuit agreed. The government only provided a copy of the § 843(b) judgment describing the offense as “use of a telephone to facilitate a narcotics offense, a Class E felony,” a description that merely restated the statutory elements of § 843(b). When confronted with a statute that is broader than the enhancement’s definition, the government must provide sufficient documentation so that the court can ensure that the defendant’s specific crime qualified for the enhancement. However, the error was not plain. Defense counsel’s statement to the court that “the documentation’s been provided” was sufficient to confuse the issue and make any error not plain. U.S. v. Henao-Melo, 591 F.3d 798 (5th Cir. 2009).

5th Circuit uses offense level for alien smuggling, rather than for making a false statement. (340) At a port of entry in Texas, defendant told a border patrol officer that he and his passengers were U.S. citizens, although he knew that two of the passengers were not. He pled guilty to one count of making a false statement, in violation of 18 U.S.C. § 1001(a) (2). Defendant contended that the conduct underlying his conviction was “specifically covered” by 8 U.S.C. § 1185(A)(3) (making a false statement in an application for permission to enter the U.S.), and therefore, the court should have sentenced him under § 2L2.1 or § 2L2.2. The Fifth Circuit held that a sentencing court may apply the cross-reference provision in § 2B1.1(c)(3) only if the application of that provision is supported by the conduct alleged in the indictment. Under this standard, the district court’s decision to use the alien smuggling guideline (§ 2L1.1) was not erroneous. Defendant’s “count of conviction” alleged that he made a false statement about his passenger’s citizenship to a border officer in an attempt “to aid the female passenger’s entry into the United States.” The alien-smuggling statute, § 1185(a)(2), expressly covers this conduct. U.S. v. Arturo Garcia, 590 F.3d 308 (5th Cir. 2009).

5th Circuit upholds reckless endangerment enhancement for alien smuggler. (340) Border Patrol officers found two illegal aliens concealed beneath the back seat of defendant’s pickup truck. Before the officers found the aliens, defendant’s child was sitting on the back seat. The aliens were “wedged” together, lying side by side on their stomachs with limited mobility, and their hiding place was uncomfortable and warm. Defendant pleaded guilty to transporting illegal aliens for financial gain, in violation of 8 U.S.C. § 1324(a) (1)(B)(i). The presentence report stated that the aliens could have been seriously injured if defendant had been involved in an accident. At sentencing, the district court found that defendant recklessly created a substantial risk of death by transporting the aliens in a manner that would endanger them if defendant had an accident. On that basis, the court enhanced the offense level by six under § 2L1.1(b)(6). The Fifth Circuit found no clear error in imposing the enhancement. U.S. v. Garza, 587 F.3d 304 (5th Cir. 2009).

5th Circuit says using suspended sentence as basis for increase was not plain error. (340) In 1994, defendant was convicted by a state court of delivery of marijuana and was sentenced to five years’ imprisonment, but the sentence was suspended with five years’ probation. Defendant was later deported. In 2007, he pled guilty to being found in the U.S. following deportation after conviction for an aggravated felony. The district court imposed a 12-level increase under § 2L1.2(b)(1)(B) because of defendant’s previous felony conviction. Defendant argued for the first time on appeal that the 12-level enhancement was error because the sentence for the prior offense was suspended. The Fifth Circuit agreed that because defendant’s sentence was suspended, his prior sentence did not meet the requirements for “sentence imposed” under the Guidelines. Under § 4A1.2(b), if a part of a sentence was suspended, a “sentence of imprisonment” refers only to the portion that was not suspended. However, the error was not plain. The result here was reached by “traversing a somewhat tortuous path” that included a careful parsing of all the relevant authorities, including the Sentencing Guidelines and applicable decisions. U.S. v. Rodríguez-Parra, 581 F.3d 227 (5th Cir. 2009).

5th Circuit holds that statute does not authorize suspension of failure-to-depart sentence after it has begun. (340) A U.S. immigration judge ordered defendant removed to El Salvador, but defendant refused to participate in a required interview, insisting he would rather spend his life in a U.S. prison than return to El Salvador. He was convicted of failing to depart under 8 U.S.C. §1253. The district court sentenced defendant to the statutory maximum of four years’ imprisonment, a sentence eight times greater than the six-months recommended by the Guidelines. The court also reserved the right to later suspend defendant’s sentence, even after the sentence had begun, if defendant decided to cooperate in his removal. The Fifth Circuit held that §1253(a) does not authorize the suspension of a failure-to-depart sentence after the sentence has begun. Although §1253(a)(3) allows the suspension of a sentence, there was nothing to indicate that this suspension could take place under anything but normal circumstances, i.e. before a sentence begins. There is nothing in §1253 that empowers a district court to “reserve” the authority to later suspend a failure-to-depart sentence. U.S. v. Garcia-Quintanilla, 574 F.3d 295 (5th Cir. 2009).

5th Circuit holds that Texas sexual assault qualified as statutory rape for crime of violence purposes. (340) Defendant was deported in June 2007 after being convicted of sexual assault of a child in Texas. Tex. Penal Code §22.011(a)(2)(A). He was convicted of attempting to illegally reenter the country, and received a 16-level crime of violence enhancement based on the Texas conviction. He argued that the prior sexual assault conviction did not qualify for enhancement as (1) sexual abuse of a minor, (2) statutory rape, or (3) a residual “use of force” crime of violence. See Note 1(B)(iii) to U.S.S.G. §2L1.2. The Texas statute punishes consensual sexual intercourse with a child, defined as a person younger than the age of 17. Previous cases have held that the Texas statute “meets a common sense definition of statutory rape.” The Fifth Circuit upheld the 16-level enhancement, holding that the district court did not err when it determined that defendant’s previous conviction involved statutory rape under the definition in Note 1(B)(iii) to U.S.S.G. §2L1.2. U.S. v. Castro-Guevarra, 575 F.3d 550 (5th Cir. 2009).

5th Circuit says generic arson does not require threatened harm to a person. (340) Defendant pled guilty to being found in the U.S. after having been deported, and received a 16-level crime of violence enhancement based on his prior arson conviction in Texas. Defendant argued that Texas’s arson statute does not fall within the generic, contemporary meaning of arson because it does not explicitly require a threat of harm to a person. The Fifth Circuit ruled that the generic meaning of arson involves the willful and malicious burning of property, and does not require a threat of harm to a person. Because Texas’s arson statute falls within this meaning, the panel upheld the crime of violence enhancement. Defendant’s narrow definition ignored the consensus among state statutes that contemporary arson involves the malicious burning of property, personal or real, without requiring that the burning threaten harm to a person. U.S. v. Velez-Alderete, 569 F.3d 541 (5th Cir. 2009).

5th Circuit says unauthorized use of motor vehicle is not crime of violence. (340) The Fifth Circuit originally affirmed an eight-level enhancement based on defendant’s prior conviction for unauthorized use of a motor vehicle, in violation of Texas law. The Supreme Court granted certiorari and remanded for reconsideration in light of Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008) and Chambers v. U.S., 555 U.S. 122, 129 S.Ct. 687 (2009). Those opinions hold that the generic crime of violence or aggravated felony must itself involve purposeful, violent and aggressive conduct. On remand, the Fifth Circuit reversed defendant’s sentence. The risk of physical force may exist where the defendant commits the offense of unauthorized use of a vehicle, but the crime itself has no essential element of violent and aggressive conduct. U.S. v. Armendariz-Moreno, 571 F.3d 490 (5th Cir. 2009).

5th Circuit rejects enhancement where government failed to prove that prior conviction was final. (340) Defendant pled guilty to illegal reentry, and received an eight-level enhancement based on the court’s finding that his second state law conviction for simple possession of cocaine qualified as an aggravated felony under § 2L1.2 (b)(1)(C). He argued that his first state law conviction was not yet final by the time he committed the second offense, and therefore, it was not an aggravated felony under federal law. Judgment for the first state law offense was entered, and a sentence imposed, on July 16, 2001. The second state law offense occurred less than four months later, on November 9, 2001. The Fifth Circuit held that the government did not prove that the first conviction was final as of November 9, and therefore, it did not prove that the second offense was an aggravated felony. To show finality, the government was required to show both that (a) defendant’s July conviction was no longer subject to examination on direct appeal, and (2) that it was not subject to discretionary review by any court. The government failed to prove either of these two facts. U.S. v. Andrade-Aguilar, 570 F.3d 213 (5th Cir. 2009).

5th Circuit says Kimbrough did not remove presumption of reasonableness for non-empirically-grounded Guidelines. (340) Defendant pled guilty to illegal reentry and received a 46-month sentence, at the low-end of his advisory guideline range. He had a previous drug felony, which led to a 16-level enhancement and dramatically increased his guideline range. The Fifth Circuit rejected defendant’s argument that factoring the prior crime into both his criminal history score and his offense level resulted in unjust “double-counting” of the prior crime. The panel also disagreed with defendant’s contention that after the Supreme Court’s decision in Kimbrough v. U.S., 552 U.S. 85 (2007), the appellate presumption of reasonableness for within-guideline range sentences only applies to empirically-grounded provisions of the Guidelines. Although Kimbrough recognized that certain Guidelines do not take account of empirical data and national experience, “absent further instruction from the Supreme Court, we cannot read Kimbrough to mandate wholesale, appellate-level reconception of the role of the Guidelines and review of the methodologies of the Sentencing Commission.” U.S. v. Duarte, 569 F.3d 528 (5th Cir. 2009).

5th Circuit does not decide “crime of violence” issue where court would have imposed same sentence. (340) Defendant received a 16-level crime of violence enhancement under § 2L1.2(b) (1)(A) based on a previous conviction for statutory rape. The enhancement led to a guideline range of 46-57 months, and the court imposed a 46-month sentence. Defendant had argued that the enhancement was improper, and his proper guideline range was 10-16 months. The district court stated that in the event it was incorrect about the crime of violence enhancement, a “sentence at certainly something more than 10 to 16 months” was warranted, and that the 46 month sentence “would be reasonable.” The Fifth Circuit found it unnecessary to determine whether statutory rape constituted a crime of violence because the court would have imposed the same sentence even without the enhancement. Although defendant argued for the first time on appeal that his correct guideline range was actually 8-14 months, there was no plain error. The court already dismissed the possibility of sentencing defendant to anything less than 16 months. U.S. v. Ruiz-Arriaga, 565 F.3d 280 (5th Cir. 2009).

5th Circuit holds that South Carolina assault and battery was crime of violence. (340) Defendant received a crime of violence enhancement under § 2L1.2(b)(1)(A)(ii) based on a South Carolina conviction for assault and battery of a high and aggravated nature. The Fifth Circuit held that the district court did not plainly err in ruling that the South Carolina offense was a crime of violence under § 2L1.2. The court relied on an unpublished opinion that was squarely on point. Moreover, even under de novo review, defendant did not show that the court erred. Defendant argued that his prior conviction did not have a mens rea requirement with respect to the infliction of serious bodily injury. However, defendant’s conviction was a common law offense, and South Carolina courts have held that for a common law offense to constitute a crime, “the act must be accompanied by criminal intent.” U.S. v. Guerrero-Robledo, 565 F.3d 940 (5th Cir. 2009).

5th Circuit says Texas deferred adjudication probation is not a sentence of imprisonment. (340) Defendant was convicted under 8 U.S.C. § 1326 of illegal reentry after a prior conviction. He argued that his prior conviction for aggravated assault was not an aggravated felony under 8 U.S.C. § 1101(a)(43)(F) because he had been sentenced to four years of deferred adjudication probation. The Fifth Circuit agreed that deferred adjudication probation in Texas is not a sentence of imprisonment, and therefore the aggravated assault did not qualify as an aggravated felony. Nevertheless, the court found no plain error, because the error only affected the statutory maximum penalty under 8 U.S.C. §1326(b), and district court’s sentence was not influenced by its incorrect understanding of the statutory maximum sentence. U.S. v. Mondragon-Santiago, 564 F.3d 357 (5th Cir. 2009).

5th Circuit says Kimbrough did not make non-empirically based Guidelines unreasonable. (340) Defendant was convicted of attempted unlawful reentry into the U.S. after deportation. He argued that § 2L1.2 was not empirically-based, and therefore should not be afforded the appellate presumption of reasonableness. He based this argument on the statement in Kimbrough v. U.S., 128 S.Ct. 558 (2007) that the Sentencing Commission “has the capacity courts lack to base its determinations on empirical data and national experience.” Defendant argued that the crack cocaine guideline was not based on such data, and therefore a district court could vary from it even in “mine-run” cases. The Fifth Circuit disagreed, stating that Kimbrough allows district courts to consider the policy decisions behind the guidelines, including the presence or absence of empirical data, as part of their § 3553(a) analyses. But Kimbrough did not question the appellate presumption of reasonableness of Guidelines sentences, and it does not require the presumption to be discarded for non-empirically-grounded Guidelines. U.S. v. Mondragon-Santiago, 564 F.3d 357 (5th Cir. 2009).

5th Circuit says oral copulation of person under 18 was not crime of violence. (340) Defendant pled guilty to illegally reentry, in violation of 18 U.S.C. § 1326(a), and received a 16-level enhancement based on a prior California conviction for oral copulation of a minor. Although sexual abuse of a minor is an enumerated category in the definition of a crime of violence, see § 2L1.2 note 1(B)(iii), defendant argued that the California statute was overbroad because it criminalized consensual conduct in cases where one party was under 18. The Fifth Circuit agreed and reversed. Thirty-nine states, federal law, and the Model Penal code define minor as one under 16. Five states define minor in this situation as under 17. Thus, in the context of the enumerated category of “sexual abuse of a minor,” the panel concluded that “minor” does not include all persons under 18. Therefore California Penal Code § 288a(b)(1), which defines minor as one under 18, is overbroad. The district court’s application of the 16-level enhancement was reversible plain error. U.S. v. Munoz-Ortenza, 563 F.3d 112 (5th Cir. 2009), abrogated by U.S. v. Rodriguez, 711 F.3d 541 (5th Cir. 2013).

5th Circuit uses second-degree murder guideline where transporting aliens resulted in five deaths. (340) Defendant transported nine undocumented aliens in his SUV. While traveling at a high speed in an attempt to escape Border Patrol agents, defendant crashed the SUV, killing five of the aliens. The district court applied a cross-reference in the alien-transporting guideline to sentence defendant under the second-degree murder guideline, and the Fifth Circuit affirmed. Defendant was extremely reckless and demonstrated a wanton disregard for human life: he drank a substantial amount of beer en route to picking up the aliens and stopped to purchase more alcohol while transporting them; the aliens were not wearing any safety restraints; an infant was traveling in the arms of its mother in the front passenger seat; the number of passengers exceeded the maximum capacity of the vehicle; defendant evaded authorities by commencing a high speed flight; he continued to speed away even after agents terminated their pursuit; he was driving at a high rate of speed over railroad tracks in an area highly trafficked by both vehicles and pedestrians; and he transported the aliens for personal gain. U.S. v. Lemus-Gonzalez, 563 F.3d 88 (5th Cir. 2009).

5th Circuit holds that generic terroristic threat was not crime of violence. (340) Defendant pled guilty to being found in the U.S. after deportation. The district court applied a 16-level crime of violence increase under § 2L1.2(b)(1)(A)(ii) based on a prior Pennsylvania conviction for making a terroristic threat. The state statute defines multiple offenses, and one of more of those offenses did not have as an element the use, attempted use, or threatened use of physical force against the person of another. The sentencing form reflected that defendant pleaded guilty to threatening to “commit any crime of violence with intent to terrorize another,” but none of the records indicated what “crime of violence” defendant threatened to commit. Under Pennsylvania law, arson does not have as an element the use, attempted use, or threatened use of physical against the person of another. The Fifth Circuit reversed, holding that the generic terroristic-threat offense of which defendant was convicted was not a crime of violence. There was a realistic probability that Pennsylvania courts would hold that a threat to commit arson with intent to terrorize another would constitute a violation of terroristic threats statute. U.S. v. Ortiz-Gomez, 562 F.3d 683 (5th Cir. 2009).

5th Circuit says New Jersey aggravated assault was crime of violence. (340) Defendant was convicted of illegally reentering the country after deportation, and received a 16-level crime of violence enhancement under § 2L1.2(b)(1)(A)(ii) based on a New Jersey conviction for aggravated assault. The Fifth Circuit held that the district court did not plainly err in holding that the New Jersey offense was a crime of violence. “Aggravated assault” is listed as a crime of violence under Note 1(B)(iii), but the Guidelines do not define the crime. New Jersey’s definition of aggravated assault requires causing or attempting to cause “significant bodily injury,” while the Model Penal Code requires “serious bodily injury.” Under New Jersey law there is a legal difference between significant and serious bodily injury. However, the difference in this case between significant bodily injury and serious bodily injury under New Jersey law was not enough to take the defendant’s crime out of the common sense definition of the enumerated offense of aggravated assault. U.S. v. Ramirez, 557 F.3d 200 (5th Cir. 2009).

5th Circuit affirms finding of prior removal where defendant agreed to accuracy of PSR. (340) Under 8 U.S.C. § 1326(a), the statutory maximum sentence for illegal reentry with no enhancements is two years in prison. If a defendant illegally reenters after a conviction for an aggravated felony and subsequent removal, the maximum sentence increases to 20 years. 8 U.S.C. § 1326(b)(2). Under U.S. v. Rojas-Luna, 522 F.3d 502 (5th Cir. 2008), the fact of the deportation must be admitted or proven to a jury beyond a reasonable doubt. Defendant was deported in 1998, 2002 and 2005, but only the 2005 deportation occurred after his 2003 aggravated assault conviction. Defendant’s guilty plea admitted only that he had been previously deported, without specifying a time frame. However, the PSR incorporated ICE records, which set forth the details of defendant’s three prior removals in 1998, 2002 and 2005. The Fifth Circuit held that the district court did not plainly err in applying an enhanced sentence based on defendant’s 2003 aggravated assault conviction. Defendant agreed to the accuracy of the PSR, and the facts of his prior removals in the PSR were based on ICE documents which were provided to defendant. U.S. v. Ramirez, 557 F.3d 200 (5th Cir. 2009).

5th Circuit holds that stalking was crime of violence. (340) Defendant pled guilty to being a felon in possession of a firearm, and received an enhanced offense level under §2K2.1(a)(4)(A) based on his prior South Carolina convictions for stalking. The Fifth Circuit agreed that the stalking offense was a crime of violence under the so-called residual clause of §4B1.2. The Supreme Court’s recent decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008) did not preclude this finding. Begay interpreted the residual clause as covering only those crimes that are “roughly similar, in kind as well as in degree of risk posed” to the enumerated offenses of burglary, arson, extortion, or the use of explosives. Stalking meets this standard—criminal intent is clearly required by the statute. Although the statute could be violated by non-violent as well as violent methods, the district court examined the indictment and the judgment to find that defendant was charged with and convicted of “willfully, maliciously and repeatedly following or harassing the victims and making repeated threats to place the victims in reasonable fear of great bodily harm or bodily injury.” U.S. v. Mohr, __ F.3d __ (5th Cir. Jan. 6, 2009) No. 08-60075.

5th Circuit holds that upward departure for multiple deaths was proper. (340) Defendants were part of a loose organization of illegal-alien smugglers. They were arrested after 19 aliens died as a result of being transported by the organization in an overcrowded tractor trailer. Defendants challenged upward departures based on the large number of aliens who died, contending that this was already accounted for by a nine-level adjustment for the number of aliens transported and an eight-level adjustment for the occurrence of a death. The Fifth Circuit affirmed the departures. The Guidelines expressly contemplates upward departures where multiple deaths occur, § 5K2.1, or otherwise where the circumstances are not adequately incorporated into the Guidelines. The upward departures took into account 18 deaths not otherwise provided for. U.S. v. Rodriguez, 553 F.3d 380 (5th Cir. 2008).

5th Circuit holds that burglary under Texas statute that did not require intent was not generic burglary. (340) Defendant was sentenced as an armed career criminal based in part on the district court’s finding that his prior burglary convictions under Texas Penal Code §30.02(a)(3) were violent felonies. Section 30.02(a)(3) applies to one who “enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.” The generic definition of burglary for §924(e) purposes involves “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor v. U.S., 495 U.S. 575 (1990). The Fifth Circuit held that burglary under Texas Penal Code §30.02(a)(3) did not qualify as generic burglary under the Taylor definition because it did not include the element of intent. Although the government argued that it was unclear whether defendant was convicted of burglary under §30.02(a)(1) or (3), the government had the burden of proving that defendant was convicted under a statute that satisfied the Taylor definition of generic burglary. U.S. v. Constante, 544 F.3d 584 (5th Cir. 2008).

5th Circuit holds Illinois conviction for delivering cannabis was drug trafficking offense. (340) Defendant argued that his Illinois conviction for delivery of marijuana was not a drug-trafficking offense under §2L1.2 because his conviction may have been based on an Illinois accountability statute that was broader than the federal aider and abettor statute. The Fifth Circuit found no realistic probability that Illinois would apply the statute to conduct outside the scope of the federal statute. As in the federal statute, the Illinois statute requires the commission of the substantive offense, the intent to promote the offense, and some form of participation in the offense. Unlike the federal offense, Illinois law says participation may be in the form of solicitation. However, solicitation is defined as “to command, authorize, urge, incite, request, or advise another to commit an offense.” The practical meaning of this list of verbs did not differ from the practical meaning of the federal list (which applies to one who “aids, abets, counsels, commands, induces or procures” the commission of an offense). U.S. v. Sandoval-Ruiz, 543 F.3d 733 (5th Cir. 2008).

5th Circuit reaffirms that Texas burglary of a habitation is crime of violence. (340) Defendant argued that the district court erred by imposing a 16-level enhancement under §2L1.2 based on its finding that his prior Texas conviction for burglary of a habitation constituted a crime of violence. However, a Fifth Circuit panel previously held that a violation of Tex. Penal Code Ann. § 30.02(a)(1), the statute pertaining to defendant’s burglary conviction, was a crime of violence under § 2L1.2 because it was equivalent to the enumerated offense of burglary of a dwelling. U.S. v. Garcia-Mendez, 420 F.3d 454 (5th Cir. 2005). Defendant argued that the Supreme Court’s recent decision in James v. U.S., 550 U.S. 192 (2007) overruled this precedent. The Fifth Circuit disagreed, and found that defendant’s argument was foreclosed by Garcia-Mendez. Although James contained dicta suggesting that the Florida statute criminalized conduct beyond generic burglary, this was not James’ holding. U.S. v. Cardenas-Cardenas, 543 F.3d 731 (5th Cir. 2008).

5th Circuit rules using telephone to facilitate drug conspiracy was “drug trafficking offense.” (340) Defendant received a 16-level enhancement under § 2L1.2(b)(1)(A)(i) because the district court found that his prior conviction under 21 U.S.C. § 843(b) for using a telephone to facilitate a drug distribution conspiracy was a “drug trafficking offense.” The Fifth Circuit agreed that the § 843(b) offense qualified as a drug trafficking offense, and the 16-level increase was warranted. Because a § 843(b) offense involves the facilitation of an underlying controlled substance offense, it results in the offender’s aiding and abetting of the underlying offense, which thereby constitutes engaging in a controlled substance offense. Defendant’s indictment clearly charged that he facilitated the commission of an independent drug crime in violation of § 843(b). U.S. v. Pillado-Chaparro, 543 F.3d 202 (5th Cir. 2008).

5th Circuit holds that California kidnapping was not crime of violence. (340) Defendant received a 16-level enhancement under § 2L1.2(a) because he was deported after his 2004 California conviction for kidnapping, which the district court found was a crime of violence. The Fifth Circuit held that the California kidnapping offense was not a crime of violence, and reversed. First, the use of force was not a necessary element of the California kidnapping offense. Section 207(a) of the California Penal Code makes it unlawful for an offender to act “forcibly, or by any other means of instilling fear.” Second, the California kidnapping offense did not qualify as the enumerated offense of “kidnapping.” Generic kidnapping involves (1) knowing removal or confinement, (2) substantial interference with the victim’s liberty, (3) force, threat, or lack of consent, and (4) substantial risk of bodily injury or involuntary servitude. The least culpable act constituting a violation of § 207(a) does not require substantial interference with the victim’s liberty or substantial risk of bodily injury or involuntary servitude. U.S. v. Moreno-Florean, 542 F.3d 445 (5th Cir. 2008).

5th Circuit holds that Texas conviction for indecency with a child constituted sexual abuse of a minor. (340) Prior to being deported, defendant was convicted of indecency with a child under Texas Penal Code § 211.11(a)(1). The district court equated indecency with a child under Texas law with sexual abuse of a minor for purposes of § 2L1.2 and applied a 16-level enhancement. Defendant argued that the definition of “child” under § 21.11(a) – a person less than 17 years old – is inconsistent with the contemporary meaning of “minor” because, for purposes of many states’ statutory rape laws, a person’s “age of consent” is deemed to be 16. The Fifth Circuit found that defendant’s argument was foreclosed by U.S. v. Zavala-Sustaita, 214 F.3d 601 (5th Cir. 2001). A child less than 17 years old is clearly a minor. U.S. v. Ayala, 542 F.3d 494 (5th Cir. 2008).

5th Circuit holds that Ohio conviction for shipping drug was “drug trafficking offense.” (340) Defendant received a 12-level enhancement under § 2L1.2(b)(1)(B) based on his 2005 Ohio drug conviction, which the district court found was a “drug trafficking offense.” Defendant argued that the state statute criminalizes behavior that does not fall within the Guidelines’ definition of a drug trafficking offense. The Ohio statute applies to a person who prepares for shipment or ships or prepares for distribution or distributes a controlled substance “when the offender knows or has reasonable cause to believe that the controlled substances is intended for sale or resale …” The Fifth Circuit upheld the enhancement, agreeing that a person who prepares for shipments, ships, transports, delivers, prepares for distribution or distributes a controlled substance, while he knows or should know that the substance is intended for sale, has committed an act of distribution under the Guidelines. The Ohio statute does not criminalize mere personal use possession; it requires a level of understanding that the drugs are for sale or resale. U.S. v. Fuentes-Oyevides, 541 F.3d 286 (5th Cir. 2008).

5th Circuit rejects per se rule that journey through south Texas brush risks death or bodily injury. (340) Defendant picked up four illegal aliens in a town in Texas and was apprehended as he drove them to another town in Texas. The district court applied a § 2L1.1(b)(6) increase for creating a substantial risk of death or serious bodily injury based on the notion that transporting aliens through brush necessarily involves such a risk. The Fifth Circuit reversed, rejecting a per se rule that traveling through the South Texas brush creates a substantial risk of death or bodily injury. The only facts shown here were that the aliens were guided through the brush for about one day in late April when the mean temperature was 87 degrees. There was no evidence regarding whether the aliens were provided food and water or allowed rest periods during the one-day journey. In fact, defendant had reasonably foreseeable knowledge that the group he transported had slept overnight in a motel. U.S. v. Mateo Garza, 541 F.3d 290 (5th Cir. 2008).

5th Circuit says defendant was not responsible for conspirators that were not part of his conspiracy. (340) Defendant picked up four illegal aliens in a town in Texas and was arrested as he drove them to another town in Texas. One of the aliens, Mejia-Lopez, testified that he illegally entered the country with a different group of aliens, and while walking around an immigration checkpoint, Mejia-Lopez got lost and was separated from his group. The following morning he encountered a second group of aliens, walked for about an hour through the brush to the road, where defendant waited in his pickup truck. The Fifth Circuit held that defendant’s sentence could not be enhanced for the acts of the alleged co-conspirators who transported Mejia-Lopez before he joined the second group of aliens. There was no evidence that Mejia Lopez’s first group was in any way related to the second group. Although defendant might reasonably foresee the actions of his co-conspirator, he could not foresee that an alien traveling with another group would join the group guided by defendant’s co-conspirator. U.S. v. Mateo Garza, 541 F.3d 290 (5th Cir. 2008).

5th Circuit says California residential burglary is not a “crime of violence.” (340) Defendant was convicted of unlawful reentry in violation of 8 U.S.C. § 1326. His sentence was increased by 16 levels under § 2L1.2(b)(1)(A)(ii), on the ground that his prior California residential burglary conviction was a “crime of violence.” The Fifth Circuit reversed. Under its decision in U.S. v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir. 2007), a conviction under California Penal Code § 459 for residential burglary is not a crime of violence for purposes of § 2L1.2(b)(1)(A). The offense is not the equivalent of the enumerated crime of burglary of a dwelling under § 2L1.2 because it does not require an unprivileged or unlawful entry, but simply an entry, even a lawful one. Thus, the offense does not have as an element “the use, attempted use, or threatened use of physical force.” The error was plain, even though Ortega-Gonzaga was decided after defendant was sentenced. The error need only be plain at the time of appellate consideration. U.S. v. Gonzalez-Terrazas, 529 F.3d 293 (5th Cir. 2008).

5th Circuit says error in crime of violence increase did not warrant reversal. (340) The district court applied a 16-level crime of violence enhancement under § 2L1.2(a) based on defendant’s conviction under New York Penal Law § 125.15 for attempted manslaughter. The New York statute contains three separate subsections, two which criminalize a broader range of conduct than encompassed by the generic offense of voluntary manslaughter. To determine which subpart formed the basis of defendant’s conviction, the district court relied on the Certificate of Disposition and the original criminal information charging defendant with second degree manslaughter. The Fifth Circuit held that this was error because the COD stated only that defendant pleaded guilty to attempted manslaughter in the second degree—it did not provide the specific subsection under which he was convicted. The criminal information charged a crime other than the one for which defendant was convicted. However, the error did not warrant reversal, because the judge said that even if he were wrong about the Guidelines, he would still impose a 41-month sentence. Thus, defendant’s sentence did not result from an incorrect application of the Guidelines. Judge Garza dissented, arguing that a properly calculated guideline range is a prerequisite to a reasonable sentence. U.S. v. Bonilla, 524 F.3d 647 (5th Cir. 2008).

5th Circuit rules Virginia distribution offense was drug trafficking offense. (340) Defendant argued that the district court erred in treating his prior Virginia conviction for distribution of cocaine as a “drug trafficking offense” under § 2L1.2(b)(1)(A)(ii). The Virginia statute, VA. CODE ANN. § 18.2-248(D) provides that if a defendant proves that he distributed the drugs only as an accommodation to another, the offense is a Class 5 felony. Defendant argued that the offense was not a drug trafficking offense because he could be guilty of only an accommodation (a form of distribution neither engaged in for profit nor to further a drug dealer’s efforts), yet be convicted for distribution. Using the categorical approach to analyze the conviction, the Fifth Circuit held that the district court did not err in classifying the prior Virginia distribution offense as a drug trafficking offense. The felony indictment charged defendant with distributing cocaine, and he pled guilty to distributing of cocaine—conduct expressly prohibited by the statute. U.S. v. Rodriguez, 523 F.3d 519 (5th Cir. 2008).

5th Circuit says guideline sentence for illegal reentry was reasonable. (340) Defendant pled guilty to illegally reentering the country after deportation, and received a 51-month sentence, which fell within the middle of his advisory guideline range. He requested a below-guideline sentence based on several factors: (1) his motivation for reentry was to see his ailing father before he died, (2) cultural assimilation (he had lived in the United States from the age of three months until he was deported at the age of 51), (3) the 16-level enhancement he received overstated the seriousness of his offense, and (4) the unwarranted sentencing disparity caused by the lack of a fast-track program. The district court considered and rejected these arguments as a basis for a non-guideline sentence. Because defendant was sentenced within a properly calculated guideline range, the Fifth Circuit found the sentence entitled to a presumption of reasonableness and affirmed. U.S. v. Gomez-Herrera, 523 F.3d 554 (5th Cir. 2008).

5th Circuit says Kimbrough does not permit variance for fast-track disparity. (340) Defendant pled guilty to illegal reentry following deportation, in violation of 8 U.S.C. § 1326. He argued that the fact that some districts have “fast-track” programs creates sentencing disparity. After defendant was sentenced, Kimbrough v. U.S., 128 S.Ct. 558 (2007) held that a court could grant a downward variance based on disagreement with the guidelines’ 100-1 ratio of crack to powder cocaine. On appeal, he argued that Kimbrough overruled the line of Fifth Circuit authority that limited the district court’s ability to consider fast-track disparity arguments. The Fifth Circuit rejected the argument, noting that Kimbrough concerned a district court’s ability to disagree with Guidelines policy, whereas this case concerned a district court’s ability disagree with Congressional policy. Congress gave the Attorney General discretion to establish fast-track programs, and the statute limits fast-track departures to early disposition programs authorized by the Attorney General. Because any disparity that results from fast-track programs was intended by Congress, it was not “unwarranted” within the meaning of § 3553(a)(6). U.S. v. Gomez-Herrera, 523 F.3d 554 (5th Cir. 2008).

5th Circuit says Texas offense of indecency with a child was sexual abuse of minor. (340) Defendant was convicted of illegally reentering the country after deportation. Prior to deportation, defendant had pled guilty to indecency with a child, in violation of Texas Penal Code § 21.11(a)(1). The Fifth Circuit held that a violation of § 21.11 amounted to “sexual abuse of a minor” and thus was a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii). The offense is defined as making “sexual contact” as defined in § 21.11(c) with an individual 16 years old or younger. In U.S. v. Zavala-Sustaita, 214 F.3d 601 (5th Cir. 2000), the court held that a violation of the indecent exposure subsection of the Texas statute was a crime of violence, since a child subjected to such exposure might suffer psychological harm, thus making the conduct “abusive.” Zavala-Sustaita was dispositive – if indecent exposure absent physical contact constitutes “sexual abuse of a minor,” then an adult’s sexual contact with a child also constitutes “sexual abuse of a minor.” U.S. v. Najera-Najera, 519 F.3d 509 (5th Cir. 2008).

5th Circuit holds that 87-month sentence for illegal reentry was not unreasonable. (340) Defendant pled guilty to illegally reentering the country after deportation. He argued that his 87-month sentence, which fell within his properly calculated guideline range, was unreasonable. However, his only argument to rebut the presumption of reasonableness was that the crime of illegal reentry into the U.S. after removal is just simple trespass. The Fifth Circuit rejected the argument. Congress considers illegal reentry into the U.S. after a conviction for an aggravated felony an extremely serious offense punishable by up to 20 years in prison. Given this, his 87-month sentence was not unreasonable. U.S. v. Juarez-Duarte, 513 F.3d 204 (5th Cir. 2008).

5th Circuit says California sexual intercourse with a minor is a crime of violence. (340) Defendant’s illegal reentry sentence was enhanced under § 2L1.2(b) (1)(A)(ii) for a prior crime of violence, i.e., a California conviction for sexual intercourse with a minor. The Fifth Circuit affirmed, noting that the violation of California Penal Code § 261.5(c) constituted an enumerated crime of violence, namely statutory rape. The court found that § 261.5(c)’s definition is overbroad under § 2L1.2(b)(1)(A)(ii), because it sets the age of consent at 18 for purposes of statutory rape, while the Model Penal Code and a majority of state jurisdiction set the age of consent at 16. However, defendant also pled no contest to an accompanying charge of lewd acts with a child under the age of 14. The elements of that charge necessarily required a victim to be under the age of 14. The factual basis underlying both offenses was the same. Thus, the charging document, which was orally amended at the plea colloquy to include a charge under § 261.5(c), established that the victim was under the age of 14. U.S. v. Lopez-DeLeon, 513 F.3d 472 (5th Cir. 2008).

5th Circuit says possession of at least 100 pounds of marijuana was not a “drug trafficking offense.” (340) Defendant’s sentence was increased by 16 levels under § 2L1.2(b) (1)(A)(i) based on the district court’s finding that his prior North Carolina conviction for simple possession of at least 100 pounds of marijuana was a “drug trafficking offense.” The Fifth Circuit reversed, holding that this was not a drug trafficking offense because the statute did not require an intent to distribute. The government argued the intent to distribute could be inferred from the statute’s requirement that at least 100 pounds be possessed. The Eleventh Circuit has found that a state statute that presumes an intent to distribute creates a drug trafficking offense. See U.S. v. Madera-Madera, 333 F.3d 1228 (11th Cir. 2003). However, the panel rejected the reasoning of Madera-Madera. Sentencing enhancements are based on federal, not state law. Under the guidelines, criminal intent to distribute must be proven and not merely implied. However, the court said that on remand, the district court could consider this conviction in imposing a non-Guidelines sentence under Booker. U.S. v. Lopez-Salas, 513 F.3d 174 (5th Cir. 2008).

5th Circuit holds California burglary conviction was not crime of violence. (340) Defendant unlawfully reentered the country following deportation. He received a 16-level enhancement under § 2L1.2(b)(1) for a prior crime of violence, based on his prior conviction under California law for residential burglary, in violation of Cal. Penal Code § 459. However, in U.S. v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir. 2007), the Fifth Circuit held that a conviction under § 459 did not constitute a crime of violence for purposes of § 2L1.2(b)(1)(A). Burglary of a dwelling, as defined in the Guidelines, requires an unprivileged or unlawful entry, while the California offense simply requires proof of an entry, even a lawful entry. In light of Ortega-Gonzaga, the Fifth Circuit held that the district court erred in applying the crime of violence enhancement. The panel rejected the government’s claim that the complaint against defendant modified the “entry” element of § 459 by including an allegation that defendant willfully and unlawfully entered the dwelling. The government did not demonstrate that this fell within that “narrow range of cases” in which a court may look beyond the elements of an offense to classify that offense for sentence enhancement purposes. U.S. v. Gonzales-Terrazas, 516 F.3d 357 (5th Cir. 2008).

5th Circuit holds California robbery is a crime of violence. (340) The district court found that defendant’s prior California robbery conviction was a crime of violence and increased his offense level under § 2L1.2(b)(1)(A)(ii) by 16 levels. Although robbery is an enumerated crime of violence under the Guideline, defendant argued that robbery under Cal. Penal Code § 211 does not meet the generic, contemporary definition of robbery because the California statute may be violated not only by the use of force but also by threats to property. The Fifth Circuit disagreed, and upheld the enhancement. The California robbery statute involves the misappropriation of property under circumstances involving danger to the person. Regardless of how the robbery occurs, that danger is inherent in the criminal act. Thus, even when the statute is violated by placing the victim in fear of injury to property, the property has been misappropriated in circumstances “involving [immediate] danger to the person.” U.S. v. Tellez-Martinez, 517 F.3d 813 (5th Cir. 2008).

5th Circuit rules California grand theft from a person is a violent felony under ACCA. (340) Defendant was sentenced as an armed career criminal based in part on his 1984 conviction for grand theft from a person, in violation of § 487(2) of the California Penal Code. The offense is defined as “theft committed … when the property is taken from the person of another.” California courts have interpreted the statute to require that the property shall at the time be actually upon or attached to the person, or carried or held in actual physical possession. So every conviction for grand theft from a person involves direct physical contact between the perpetrator and the victim. Thus, the Ninth Circuit has held that grand theft from a person is a violent felony under § 924(e). See U.S. v. Wofford, 122 F.3d 787 (9th Cir. 1997). Moreover, in U.S. v. Hawkins, 69 F.3d 11 (5th Cir. 1995) the Fifth Circuit held that felony theft from a person under Texas law constitutes a “crime of violence” under U.S.S.G. § 4B1.2. The Fifth Circuit found no reason to depart from the reasoning of Wofford or Hawkins, and agreed that defendant’s grand theft conviction constituted a violent felony under the ACCA. U.S. v. Hawley, 516 F.3d 264 (5th Cir. 2008).

5th Circuit says Texas offense that included offer to sell was not controlled substance offense. (340) Defendant pled guilty to being a felon in possession of a firearm, and received an increase under § 2K2.1(a)(2) for having two prior convictions that were crimes of violence or a controlled substance offense. One prior offense was a Texas conviction for delivering a controlled substance, in violation of section 481.112(a) of the Texas Health and Safety Code. The Fifth Circuit held that court plainly erred in finding that this offense constituted a “controlled substance” offense under § 2K2.1. A conviction for delivering a controlled substance under § 481.112(a) covers a broader range of offenses than a “controlled substance offense” under § 2K2.1(a)(2). A defendant can be convicted under the Texas law for offering to sell a controlled substance, whereas the definition of a “drug trafficking offense” under the Guidelines does not include an offer to sell. Thus the prior conviction could have been merely for an offer to sell under § 481.112. The error was “plain” because the current law is clear that a mere offer to sell, absent possession, does not fit within the Guidelines’ definition of a controlled substance offense. U.S. v. Price, 516 F.3d 285 (5th Cir. 2008).

5th Circuit upholds variance where prior offense almost qualified as drug trafficking offense. (340) Defendant pled guilty to illegal reentry after deportation. The PSR recommended a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(i) for a prior drug trafficking offense. The district court found that the state offense did not qualify for the enhancement because the state statute included activity that fell outside § 2L1.2’s definition of a drug trafficking offense. The effect of removing the enhancement was to reduce defendant’s advisory sentencing range from 70-87 months to a range of 21-27 months. The district court imposed a sentence of 60 months, because defendant’s “prior crimes were not used to properly enhance his offense level.” The Fifth Circuit held that the variance was substantively reasonable, and affirmed. First, defendant’s argument that a disagreement with the Guidelines is not a sufficient reason to impose a non-Guidelines has lost most of its force in light of Kimbrough v. U.S., 128 S. Ct. 558 (2007) and Rita v. U.S., 127 S. Ct. 2456 (2007). Second, a defendant’s criminal history is one of the factors that a court may consider in imposing a non-Guidelines sentence. The sentence was substantively reasonable. The district court found that the guideline range did not account for the fact that defendant had in fact been convicted of drug trafficking conduct (he had 400 grams of heroin and $2500 in cash when he was arrested). U.S. v. Herrera-Garduno, 519 F.3d 526 (5th Cir. 2008).

5th Circuit holds that defendant had burden of showing that prior alien smuggling offenses involved only family members. (340) Defendants pled guilty to illegal reentry after deportation. They both received enhancements under § 2L1.2(b)(1)(A)(vii) based on the court’s finding that their prior convictions for transporting aliens were “alien smuggling offenses” under 8 U.S.C. § 1101(a)(43)(N). An “alien smuggling offense” does not include a first offense that the alien committed for offense the purpose of assisting, abetting, or aiding the alien’s spouse, child, or parent. Defendants argued on appeal that the enhancement was inapplicable because the government failed to prove that their prior offenses involved aliens other than their spouses or relatives. They claimed that the government, as the proponent of the sentencing enhancement, had the burden of identifying the aliens previously transported in order to prove the prior convictions were for “aliens smuggling offenses.” The Fifth Circuit disagreed. The general rule is that the party seeking an adjustment in the sentence level must establish the factual predicate justifying the adjustment. The factual predicate the government must establish is a prior conviction for an offense under 8 U.S.C. § 1326. The burden is on the defendant to affirmatively show that the prior offense was a first offense involving only qualifying family members. U.S. v. Rabanal, 508 F.3d 741 (5th Cir. 2007).

5th Circuit finds California assault with intent to commit certain listed felonies is crime of violence. (340) Defendant pled guilty to illegal reentry after deportation. The district court applied a 16-level enhancement after finding that defendant’s prior conviction under California Penal Code § 220(a) qualified as a crime of violence under § 2L1.2. The California statute criminalizes assault with intent to commit certain listed felonies, including mayhem, rape, sodomy, and oral copulation. The Fifth Circuit found no error, holding that every offense defined by the California statute qualifies as a crime of violence because the statutory subsection is the common sense equivalent to the enumerated offense of aggravated assault. The ordinary, contemporary, and common meaning of aggravated assault includes “assault with intent to commit a felony.” That is exactly what California Penal Code § 220(a) criminalizes. U.S. v. Roja-Gutierrez, 510 F.3d 545 (5th Cir. 2007).

5th Circuit upholds reliance on New York Certificate of Disposition to establish offense was crime of violence. (340) Defendant received an enhancement under § 2L1.2 based on the district court’s finding that his prior New York conviction for attempted assault was a crime of violence. One or more prongs of the state statute did not qualify as a crime of violence under a categorical approach. The district court relied on both the Certificate of Disposition and the indictment to find that defendant was convicted under one of the violent prongs of the statute, and thus the conviction was a crime of violence. Because defendant pled guilty to a different offense than that for which he was indicted, the Fifth Circuit found that the court erred in using the indictment to determine under which subsection defendant pled guilty. However, the Certificate of Disposition had sufficient indicia of reliability to support its probably accuracy so that it could be used as evidence of defendant’s prior conviction. Under New York law, a Certificate of Disposition is a judicial record of the offense of which the defendant was convicted and “constitutes presumptive evidence of the facts stated in such certificate.” Although the Certificate is not conclusive, defendant produced no evidence calling into questions the reliability of the Certificate. U.S. v. Neri-Hernandez, 504 F.3d 587 (5th Cir. 2007).

5th Circuit holds Colorado state conviction for attempted second-degree kidnapping was not a crime of violence. (340) Defendant received a 16-level crime of violence enhancement based on his prior Colorado conviction for attempted second-degree kidnapping. The sole ground for doing so was that the offense qualified as the enumerated offense of “kidnapping” under note 1(B)(iii) to § 2L1.2. The Fifth Circuit reversed. The Colorado second-degree kidnapping statute is broader than the offense contemplated in the guidelines. The generic definition of kidnapping contains three requirements: (1) knowing removal or confinement, (2) substantial interference with the victim’s liberty, and (3) force, threat, or fraud. Based on its review of Colorado caselaw, the panel concluded that the state statute did not require a substantial interference with the victim’s liberty. U.S. v. Cervantes-Blanco, 504 F.3d 576 (5th Cir. 2007).

5th Circuit affirms upward variance in alien transportation case. (340) Defendant and another man guided a large group of aliens across the U.S. border for a fee. He pled guilty to conspiring to transport illegal aliens and aiding and abetting in the transportation of illegal aliens. One of the aliens, a 13-year old boy, died of heat stroke, and another, a diabetic with heart problems, needed hospitalization. His advisory guideline range was 46-71 months, but the district court deviated upward to a non-guideline sentence of 80 months in prison, finding the facts were more egregious than the normal alien-smuggling case. The Fifth Circuit affirmed, rejecting defendant’s claim that the court deviated upward based on factors already accounted for by the guidelines, such as the number of aliens that defendant recklessly endangered and the death that occurred. The court found that the facts were “heinous” and that defendant’s actions were “like torturing these people and leaving them to die” while refusing to share food and water. Although the guidelines imposed an enhancement for reckless endangerment, defendant’s actions had helped to place over 20 people in serious danger. In addition, while the guidelines imposed an enhancement for the death of the boy, the court found the facts surrounding his death extraordinary. The court simply did not believe defendant’s contention that he did not know that the boy was dying. The court found that defendant “slapped” the boy and called him names despite the boy’s obvious illness. Additionally, because defendant’s motivation had been to learn the alien smuggling business, the court found that defendant had failed to help the aliens because of concern about his new job and the money he hoped to make. U.S. v. Sanchez-Ramirez, 497 F.3d 531 (5th Cir. 2007).

5th Circuit rejects drug trafficking enhancement where unclear whether defendant transferred cocaine or merely offered to sell it. (340) Defendant had previously pleaded guilty to a Texas charge for delivery of cocaine. Defendant argued that the offense was not a “drug trafficking offense” for purposes of a 16-level enhancement under § 2L1.2(b)(1)(A)(i). The statutory definition of delivery of a controlled substance in Texas included activity that does not fall within § 2L1.2’s definition of a drug trafficking offense, namely “offering to sell a controlled substance.” The allegations in the charging document indicated that defendant was being charged with actually transferring, constructively transferring, and offering to sell cocaine. Although defendant pled guilty to the indictment, under Texas law, this is only an admission of those facts needed to support the conviction, rather than an admission of all the fact in the charging document. Having nothing more than the fact of conviction and the charging document, the Fifth Circuit held that it could not determine whether the conviction was a drug trafficking offense. It was unclear whether defendant transferred cocaine or merely offered to sell cocaine. Thus, the district court erred in applying the enhancement. U.S. v. Morales-Martinez, 496 F.3d 356 (5th Cir. 2007).

5th Circuit finds Georgia conviction for selling or possessing 28 grams or more of meth was “drug trafficking offense.” (340) Defendant received a 16-level increase under § 2L1.2(b) (1)(A)(i) for a prior drug trafficking conviction, a 1999 Georgia conviction for trafficking in methamphetamine. The Georgia statute applies to any person who sells or possesses 28 grams or more of methamphetamine, or any mixture containing methamphetamine. Defendant argued that because the Georgia statute could be violated by mere possession of meth, the district court erred in finding that the conviction was a “drug trafficking offense.” The Fifth Circuit affirmed the enhancement, ruling that a conviction for either selling or possessing 28 grams or more of meth under Ga. Code Ann § 16-13-31(e) constitutes a “drug trafficking offense” under the guidelines. The three-tired structure of drug offenses in Georgia showed that while Georgia did not consider the mere possession of a relatively small amount of controlled substance to be “trafficking,” the possession of a significant quantity of drugs is considered “trafficking” and is a more serious offense than either simple possession or possession with intent to distribute. U.S. v. Gutierrez-Bautista, 494 F.3d 523 (5th Cir. 2007).

5th Circuit finds forcible rape under 1991 California law was not crime of violence. (340) Defendant was convicted of illegal reentry into the U.S. after deportation, and received a 16-level crime of violence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his 1991 rape conviction in California. The Fifth Circuit reversed, holding that forcible rape, as it existed in California in 1991, was not a crime of violence. The offense did not have as an element the use, attempted use, or threatened use of force. It was possible for a defendant to be convicted where the rape was committed by “duress,” which was defined to include a threat of hardship, or retribution. Threats of hardship or retribution both fall short of threats of force or injury. For example, a defendant could have violated the 1991 statute by threatening to reveal an embarrassing secret about his victim or threatening to fire a subordinate. For the same reasons, the offense did not qualify as a “forcible sex offense,” which is one of the crimes enumerated as a crime of violence. For a crime to qualify as a forcible sex offense, all of the conduct criminalized by the statute must so qualify. Hence, the “forcible sex offense” inquiry usually mimics the “elements” inquiry. U.S. v. Gomez-Gomez, 493 F.3d 562 (5th Cir. 2007).

5th Circuit holds federal bank robbery was not a crime of violence. (340) Defendant was indicted for federal bank robbery in violation of 18 U.S.C. § 2113(a). That statute imposes a maximum 20-year sentence on anyone who by force and violence takes from the person of another any property or money belonging to any bank, or who “enters or attempts to enter any bank … with intent to commit in such bank … any felony affecting such bank, credit union, or such savings and loan association ….” In U.S. v. Jones, 993 F.2d 58 (5th Cir. 1993), the court held that the second paragraph of § 2113(a) (under which defendant was convicted) does not constitute a crime of violence under 18 U.S.C. § 924(c). That provision contains a definition for crime of violence very similar to that used in the guidelines. The government conceded that Jones governed this case, but argued that because the district court made numerous comments at sentencing suggesting that it sought to impose the highest sentence possible on defendant, there was “a reasonable probability that the court would not impose a lesser sentence on remand” and therefore defendant could not show plain error. The Fifth Circuit rejected this argument. If a sentence is imposed as a result of an incorrect application of the guidelines, the sentence must be vacated and the case remanded for further proceedings. U.S. v. Dentler, 492 F.3d 306 (5th Cir. 2007).

5th Circuit holds that Texas aggravated assault was a crime of violence. (340) Defendant challenged the district court’s finding that his prior conviction for aggravated assault qualified as a crime of violence. In U.S. v. Mungia-Portillo, 484 F.3d 813 (5th Cir. 2007), the court held that conviction under the Tennessee aggravated assault statute qualified as a conviction for the enumerated offense of aggravated assault. The court found that the differences between Tennessee’s definition of aggravated assault and the Model Penal Code’s definition were “sufficiently minor” that they did not remove the Tennessee statute from the family of offenses commonly known as “aggravated assault.” Tennessee’s aggravated assault statute included the two most common aggravated factors found in other aggravated assault statutes, that is “the causation of serious bodily injury and the use of a deadly weapon.” Since the provision of the Texas aggravated assault statute under which defendant was convicted was identical in all material respects to the Tennessee assault statute involved in Mungia-Portillo, the Fifth Circuit held that the Texas conviction qualified as a crime of violence. U.S. v. Guillen-Alvarez, 489 F.3d 197 (5th Cir. 2007).

5th Circuit rules that “burglary of a dwelling” requires showing of unlawful entry into building with intent to commit crime. (340) Defendant pled guilty to illegal reentry following deportation, and received a 16-level increase based on the court’s finding that his previous California conviction for burglary, in violation of Cal. Penal Code § 459, was a crime of violence under U.S.S.G. § 2L1.2. The parties contested whether defendant’s prior conviction was the enumerated felony of “burglary of a dwelling” under the categorical approach. The California statute criminalized entry into a building with the intent to commit larceny or any felony. However, the generic, contemporary meaning of burglary contains the following elements: “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” See Taylor v. United States, 495 U.S. 575 (1990). Since the California statute did not require an unlawful or unprivileged entry into a building, the Fifth Circuit held that the statute does not proscribe “burglary of a dwelling.” For example, a shoplifter who lawfully enters a store with the intent to steal may later commit theft, but not burglary. Therefore, the 16-level increase was improper. U.S. v. Ortega-Gonzaga, 490 F.3d 393 (5th Cir. 2007).

5th Circuit holds burglary conviction that did not require intent to commit crime at time of illegal entry was not “crime of violence.” (340) Defendant pled guilty to illegal reentry following deportation, and received a 16-level increase based on the court’s finding that his previous Tennessee conviction for aggravated burglary, in violation of Tenn. Code Ann. § 39-14-403, was a crime of violence under U.S.S.G. § 2L1.2. The parties contested whether defendant’s prior conviction was the enumerated felony of “burglary of a dwelling” under the categorical approach. The indictment tracked subsection (a)(3) of the statute, which applies even if, at the time of unlawful entry, the defendant had no intent to commit a crime. Such an intent is required under the generic definition of burglary, as outlined in Taylor v. United States, 495 U.S. 575 (1990). Because such intent was lacking, the Fifth Circuit ruled that under the categorical approach, defendant’s prior conviction was not “burglary of a dwelling,” and thus was not a crime of violence. U.S. v. Herrera-Montes, 490 F.3d 390 (5th Cir. 2007).

5th Circuit holds that unarmed Texas robbery was violent felony under ACCA. (340) The ACCA defines a violent felony as a crime punishable by a term of prison exceeding one year that either (i) has as an element the use, attempted use, or threatened use of physical force (the “force clause”); or (ii) is burglary, arson, extortion, involves explosives or otherwise involves conduct that presents a serious potential risk of physical injury to another (the “residual clause”). § 924(e) (2)(B). The test for determining whether an offense falls within the residual clause is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another. The Fifth Circuit held defendant’s prior Texas robbery convictions were violent felonies under the ACCA. Although the Texas statute did not require the use of a weapon, even when the robber has no weapon, there is a very real possibility of confrontation between the robber and victim. In a robbery, there is always a substantial risk that force will be used to ensure the victim’s compliance with the robber’s demands. U.S. v. Davis, 487 F.3d 282 (5th Cir. 2007).

5th Circuit says court must use categorical approach to determine if alien smuggling offense was “committed for profit.” (340) Defendants pled guilty in 2003 in unrelated cases to illegal reentry after deportation, and each received a 16-level enhancement under § 2L1.2 (b)(1)(A)(ii) for being deported after a conviction for an alien smuggling offense. They argued that the application of the enhancement was an ex post facto violation. Under the 2002 guidelines, the enhancement was restricted only to those prior alien-smuggling offenses “committed for profit.” The 2003 version of the guidelines removed the “committed for profit” element. Defendant argued that under the 2002 guidelines they would not have been subject to the enhancement because, under the Taylor-categorical approach, the district courts could not have relied on defendants’ offense reports to make the “for profit” finding. The court had previously rejected the categorical approach when applying the 16-level increase. See U.S. v. Sanchez-Garcia, 319 F.3d 677 (5th Cir. 2003). Defendants argued that Sanchez-Garcia had been abrogated by Booker, thus requiring application of Taylor‘s “categorical approach.” The Fifth Circuit agreed that Sanchez-Garcia was inconsistent with Booker. Thus, to the extent that Sanchez-Garcia suggests that judicial fact-finding for a § 2L1.2 (b)(1)(A)(vii) increase is proper, the case has been abrogated. Because “for profit” was not an element of the prior drug-smuggling offense, defendants would not have been subject to the enhancement under the 2002 guidelines, and the application of the increase under the 2003 guidelines violated the ex post facto clause. U.S. v. Rodarte-Vasquez, 488 F.3d 316 (5th Cir. 2007).

5th Circuit holds that ex post facto argument did not preserve Booker error. (340) Defendants were convicted of illegal reentry after deportation. While their appeals of the sentences were pending, the Supreme Court decided Booker. Defendant argued that they should be resentenced in light of Booker because the district court’s finding that their prior alien smuggling offenses were committed for profit constituted Sixth Amendment error. The Fifth Circuit held that defendants did not preserve the alleged Booker error. Their objections in the district court for this issue did not mention either the Sixth Amendment or Apprendi. In order to preserve a Booker objection, a defendant need not explicitly cite Apprendi, Blakely, or the Sixth Amendment. However, the defendant must raise an objection sufficient to apprise the sentencing court that he is raising a constitutional claim with respect to judicial fact-finding in the sentencing process. Defendants’ ex post facto claim that the enhancement was improper under the categorical approach articulated in Taylor v. United States, 495 U.S. 575 (1990) did not preserve the Booker error. U.S. v. Rodarte-Vasquez, 488 F.3d 316 (5th Cir. 2007).

5th Circuit holds that Florida burglary conviction was not a crime of violence. (340) The district court found that defendant’s 1997 Florida conviction for burglary, under Florida Statute § 810.02(3), constituted a crime of violence, for purposes of a 16-level enhancement under § 2L1.2(b)(1)(A)(ii). Burglary of a dwelling is an offense enumerated in the notes to § 2L1.2 as a crime of violence. However, the Florida statute included entry into a dwelling’s curtilage, which under Florida law includes the ground and buildings immediately surrounding a dwelling. Because defendant may have been convicted of merely entering in the dwelling’s curtilage, the Fifth Circuit held the conviction was not a crime of violence. Curtilage is the grounds around the dwelling and not the dwelling itself. U.S. v. Gomez-Guerra, 485 F.3d 301 (5th Cir. 2007).

5th Circuit holds that New York kidnapping was a crime of violence. (340) At issue was whether defendant’s prior New York conviction for second-degree kidnapping constituted a crime of violence for purposes of a § 2L1.2 enhancement. The New York statute says that a person is guilty of kidnapping in the second degree when he abducts another person. NY Penal Law § 135.20. The term “abduct” means to restrain a person with intent to prevent his liberation by either holding him in a place where he is not likely to be found or using or threatening to use deadly physical force. The Fifth Circuit held that the New York statute proscribed the generic crime of “kidnapping,” and thus it qualified as a crime of violence. Generic kidnapping does not require circumstances exposing the victim to substantial risk of physical injury or confinement as a condition of involuntary solitude. U.S. v. Iniguez-Barba, 485 F.3d 790 (5th Cir. 2007).

5th Circuit holds revocation sentence was not improperly based on illegal reentry guideline. (340) As a condition of defendant’s supervised release, he was ordered not to commit another crime, and if deported, he was ordered not to reenter the U.S. illegally. He was deported, reentered the country illegally, and was arrested in Illinois for shoplifting. He was not prosecuted for either theft or illegal reentry. Instead, the government sought to revoke his supervised release. The judge expressed frustration with the failure of the U.S. Attorney’s office in Chicago to prosecute defendant for illegal reentry, instead sending him to Texas for revocation proceedings. After inquiring what the guideline sentence for illegal reentry would have been (46-57 months), the court concluded that the four-to-ten month revocation range was insufficient to address this type of violation, and sentenced defendant to 46 months. Defendant argued that the court improperly based his revocation sentence on the illegal reentry guideline, a crime he committed but was not charged with. The Fifth Circuit held that the 46-month revocation sentence was not plain error. Although the court expressed displeasure at the government’s failure to charge defendant with illegal reentry, it was more plausible that the court based defendant’s sentence on the fact that it gave defendant a significant downward departure in his original sentence. Thus, if there was any error, it was not plain. U.S. v. Hernandez-Martinez, 485 F.3d 270 (5th Cir. 2007).

5th Circuit finds soliciting minor to perform sex act was “sexual abuse of a minor.” (340) In 2003, defendant pled no contest to indecent solicitation of a child, in violation of Kan. Stat. Ann. § 21-3510(a)(1). The Fifth Circuit held that the offense constituted “sexual abuse of a minor” for purposes of the crime of violence enhancement under U.S.S.G. § 2L1.2. Since a violation of the statute required that the minor be solicited or enticed to “commit or to submit to an unlawful sexual act,” it was clear that a violation of the statute was “sexual” in nature. Soliciting or enticing a minor to perform an illegal sex act is also abusive because of the psychological harm it can cause, even if any resulting sex is consensual. Defendant argued that the statute did not require that the perpetrator be an adult, and thus could punish a 15-year old boy for sending a suggestive e-mail to his 15-year-old girlfriend. However, defendant failed to show a realistic probability that Kansas would in fact punish conduct of this type. He did not point to any example in which both the perpetrator and the victim were below the age of consent at the time of the offense. U.S. v. Ramos-Sanchez, 483 F.3d 400 (5th Cir., 2007).

5th Circuit finds Tennessee conviction for reckless aggravated assault was a crime of violence. (340) Defendant pled guilty to illegal reentry after deportation and received a 16-level increase under § 2L1.2 based on the court’s finding that his 1992 Tennessee conviction for aggravated assault qualified as a crime of violence. The Fifth Circuit affirmed. The court applied a “common sense approach” to determine if the Tennessee offense constituted the enumerated offense of aggravated assault. Although the mental state required by Tennessee’s aggravated assault statute (recklessness) did not correlate perfectly with the one required by the Model Penal Code (“depraved heart” recklessness), the differences between the statutes were minor. Criminal law treatises make no special note of the degree of mental culpability typical of an aggravated battery. What was more significant was that Tennessee’s aggravated assault statute included the two most common aggravating factors; the causation of serious bodily injury and the use of a deadly weapon. U.S. v. Mungia-Portillo, 484 F.3d 813 (5th Cir. 2007).

5th Circuit holds that Florida aggravated battery was crime of violence. (340) Defendant illegally reentered the country after deportation. He received a 16-level enhancement under § 2L1.2(b)(1)(A) based on the court’s finding that his earlier Florida conviction for aggravated battery was a crime of violence. The Fifth Circuit affirmed. The indictment alleged that defendant intentionally touched or struck the victim against his will with a deadly weapon. Although the Florida offense does not require the use or attempted use of force, the touching of an individual with a deadly weapon creates a sufficient threat of force to qualify as a crime of violence. See U.S. v. Treto-Martinez, 421 F.3d 1156 (10th Cir. 2005) (touching police officer in a rude, insulting or angry manner was threatened use of physical force). U.S. v. Dominguez, 479 F.3d 345 (5th Cir. 2007).

5th Circuit holds that state law label does not control whether offense is enumerated crime of violence. (340) Defendant illegally reentered the country after deportation, and received a 16-level crime of violence enhancement under § 2L1.2(b) (1)(A)(ii) based on a prior Tennessee conviction for attempted kidnapping. Kidnapping is one of the offenses enumerated in the guidelines as a crime of violence; the government argued that if the state statute of conviction is labeled “kidnapping” or “attempted kidnapping,” the conviction automatically qualifies as kidnapping under the guideline commentary. The Fifth Circuit ruled that state-law labels do not control – when a sentencing enhancement is based on an enumerated but undefined offense, and when the states’ definitions of that offense vary significantly, the offense “must have some uniform definition independent of the labels employed by the various States’ criminal codes.” The panel concluded that Tennessee’s kidnapping statute did not sweep more broadly than the generic contemporary meaning of the term kidnapping. Tennessee requires the use of force, threat or fraud along with the additional aggravating elements of substantial risk of injury or confinement as a condition of involuntary servitude. The district court did not err in ruling that defendant’s conviction for attempted kidnapping was a crime of violence. U.S. v. Gonzalez-Ramirez, 477 F.3d 310 (5th Cir. 2007).

5th Circuit rejects aggravated felony increase for conduct that would be misdemeanor under CSA. (340) Defendant pled guilty to illegal reentry after deportation, and received an eight-level aggravated felony enhancement under § 2L1.2(b)(1)(C) for his prior Texas felony conviction for possession of a controlled substance. Defendant argued that the drug possession should not be considered an aggravated felony because, although it was a felony under Texas law, it would only be a misdemeanor under the federal Controlled Substances Act (CSA). The district court, following existing circuit law, overruled the objection and imposed the sentence. Applying the Supreme Court’s recent decision in Lopez-Gonzalez, 127 S.Ct. 625 (2006), the Fifth Circuit vacated and remanded for resentencing. Lopez-Gonzalez held that because mere possession of a controlled substance is not a felony under the CSA, it is not an aggravated felony under the Immigration and Nationality Act (INA). Lopez-Gonzalez also applies to the definition of an aggravated felony under the guidelines. U.S. v. Estrada-Mendoza, 475 F.3d 258 (5th Cir. 2007).

5th Circuit holds that third-degree assault did not have as element use, attempted use, or threatened use of physical force. (340) Defendant was sentenced as a career offender based on the court’s finding that his prior Colorado conviction for third-degree assault was a crime of violence. U.S.S.G. § 4B1.1. The Colorado statute defined the offense as knowingly or recklessly causing bodily injury to another or with criminal negligence causing bodily injury to another person by means of a deadly weapon. The Fifth Circuit vacated the sentence and remanded for development of the record. The offense conviction was not a crime of violence under § 4A1.2(a) (1) because the statute did not require as an element the use, attempted use, or threatened use of physical force. There were several ways in which the statute could be violated that would not involve the use of physical force (for example, exposing someone to hazardous chemicals, placing a barrier in front of a car to cause an accident). In order to determine whether the conviction was a crime of violence under § 4B1.2(a)(2), a court had to examine the face of the indictment to determine if the charged conduct presented a serious potential risk of injury to a person. The court here did not have the Colorado state indictment in the record before it; therefore it could not determine whether the career offender increase was sustainable under § 4B1.2(a)(2). The panel remanded for supplementation of the record to include the charging instrument, and resentencing. U.S. v. Garcia, 470 F.3d 1143 (5th Cir. 2006).

5th Circuit holds that Texas assault conviction was not a crime of violence. (340) Defendant pled guilty to illegally reentering the country following deportation, 8 U.S.C. § 1326(a) and (b), and received an eight-level enhancement for a prior conviction for an aggravated felony, § 2L1.2(b)(1)(C). The term “aggravated felony” includes “a crime of violence” as defined in 18 U.S.C. § 16. The Fifth Circuit held that defendant’s prior Texas assault conviction under Texas Penal Code § 22.02(a)(1), did not constitute a crime of violence under either § 16(a) or (b). Section (a) requires an offense to have as an element the use, attempted use or threatened use of physical force. The Texas assault statute required the government to prove that the defendant caused bodily injury to another. This does not incorporate a requirement to show the intentional use of force. Bodily injury could result from any of a number of acts, without the use of force (for example, giving a victim a poisoned drink). Section 16(b) defines a crime of violence as “any offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. Since defendant’s offense was not a felony, it did not satisfy § 16(b) definition of a crime of violence. U.S. v. Villegas-Hernandez, 468 F.3d 874 (5th Cir. Oct. 31, 2006) No. 05-40988.

5th Circuit holds that transporting aliens in cargo area of van surrounded by boxes and luggage created substantial risk of death. (340) Defendant transported five undocumented aliens lying side-by-side in the cargo area of his van. The aliens were concealed behind boxes and luggage that were stacked to the van’s ceiling. The Fifth Circuit affirmed a § 2L1.1(b)(5) increase for intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person. Courts consider five factors when applying § 2L1.1(b)(5): the availability of oxygen, exposure to temperature extremes, the aliens’ ability to communicate with the driver of the vehicle, their ability to exit the vehicle quickly, and the danger to them if an accident occurred. The first three factors were not an issue, but the final two factors supported the application of the enhancement. Transporting the aliens in a manner that significantly hinders their ability to exit the vehicle quickly creates a substantial risk of death or serious bodily injury. Here, the boxes were stacked on all sides of the aliens; there was no gap through which they could exit. In addition, the van door was covered by a wall of boxes, some containing bottles of beer and thus quite heavy to move. The aliens would be unable to access the door and exit the van. Moreover, in the event of an accident, the boxes and luggage could fly around and strike or land on top of the aliens. U.S. v. Zuniga-Amezquita, 468 F.3d 886 (5th Cir. 2006).

5th Circuit holds that Texas conviction for deadly conduct was crime of violence. (340) Defendant was convicted of illegally reentering the country after deportation. The district court found that his prior Texas conviction for “deadly conduct” was a crime of violence, and imposed a 16-level enhancement under U.S.S.G. § 2L1.2(b) (2)(1)(A)(ii). The Fifth Circuit affirmed. Defendant was convicted under a section of the Texas statute barring a person from “knowingly discharg[ing] a firearm at or in the direction of … one or more individuals.” Shooting a gun in the direction of another person (even if not directly at the other person) constitutes a use of force. U.S. v. Hernandez-Rodriguez, 467 F.3d 492 (5th Cir. 2006).

5th Circuit holds that aggravated assault conviction was not crime of violence since it prohibited conduct outside generic meaning of aggravated assault. (340) Aggravated assault is one of the offenses enumerated in U.S.S.G. § 2L1.2, note 1(B)(iii) as a crime of violence. In order to determine if a state conviction qualifies as an enumerated offense, regardless of how the conviction is labeled by the state, the Fifth Circuit uses a “common sense approach” to determine whether a state conviction falls under “the generic, contemporary meaning” of the enumerated offense. See U.S. v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. 2005). The Fifth Circuit held that defendant’s Texas aggravated assault conviction did not qualify as a crime of violence under § 2L1.2 because it prohibited conduct outside the generic meaning of aggravated assault. The Texas statute merely required conduct amounting to simple assault, and the offense was elevated to aggravated assault because of the status of the victim as a peace officer. Neither the Model Penal Code, Black’s Law Dictionary, nor the majority of states categorize simple assault on a police officer as aggravated assault. Thus, the bulk of authority indicates that the generic, contemporary, meaning of aggravated assault does not include simple assault on a police officer. U.S. v. Fierro-Reyna, 466 F.3d 324 (5th Cir. 2006).

5th Circuit holds that Texas statutory rape was crime of violence. (340) Defendant pled guilty to reentering the U.S. illegally after deportation. The district court found that his prior Texas conviction for consensual sex with a person less than 17 years old under Tex. Penal Code § 22.011(a)(2) was a crime of violence, warranting a 16-level enhancement under § 2L1.2. The Fifth Circuit agreed. Included among the enumerated offenses that qualify as crimes of violence are “statutory rape,” and “sexual abuse of a minor.” The Texas statute met the common sense definition of “statutory rape.” The statute punished consensual sexual intercourse with a child, defined as a person younger than the age of 17. U.S. v. Alvarado-Hernandez, 465 F.3d 188 (5th Cir. 2006).

5th Circuit upholds as reasonable a sentence within two possible guideline ranges. (340) Defendant pled guilty to reentering the U.S. after being deported. He had a prior New York conviction for attempted assault in the first degree. The district court found that if the prior conviction was technically not a crime of violence, defendant would have a guideline range of 10-16 months, and, because of the violent nature of the prior offense, a sentence within this range was not reasonable. It also found that if the offense was a crime of violence, the resulting guideline range of 46-57 months would unfairly exaggerate defendant’s criminal history. The court also recognized that defendant had been in the U.S. for several years and had a degree of cultural assimilation – a proper basis for a downward departure from the guidelines. Recognizing the non-binding nature of the guidelines, the court imposed a non-guideline sentence of 36 months. The Fifth Circuit held that the sentence was reasonable, and affirmed. The court elected to exercise its discretion to give a non-guideline sentence after considering the two possible properly calculated guideline ranges that could apply to defendant. Defendant’s sentence did not “result” from an incorrect application of the guidelines. The court, after carefully considering the guidelines, decided to impose a non-guideline sentence based on individualized § 3553(a) factors. The court found no errors of judgment in the district court’s balancing of the sentencing factors, and affirmed. U.S. v. Tzep-Mejia, 461 F.3d 522 (5th Cir. 006).

5th Circuit holds that refusal to consider sentencing disparity caused by early disposition program did not make sentence unreasonable. (340) Defendant asked the district court to impose a sentence below the applicable guideline range because the Western District of Texas lacked a U.S.S.G. § 5K3.1 “early disposition” program, which would have permitted a four-level downward departure. The Fifth Circuit held that a court’s refusal to factor the disparity caused by the lack of a fast-track program did not render the sentence unreasonable. To require a court to vary from the advisory guidelines based solely on the existence of early disposition programs in other districts would conflict with the decision of Congress to limit the availability of such sentence reductions to select geographical areas, and with the Attorney General’s exercise of prosecutorial discretion to refrain from authorizing early disposition agreements. U.S. v. Aguirre-Villa, 460 F.3d 681 (5th Cir. 2006).

5th Circuit holds that third-degree criminal sexual conduct was crime of violence. (340) Defendant was convicted of illegally reentering the country after deportation. He received a 16-level crime of violence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his prior Minnesota conviction for third-degree criminal sexual conduct. The enhancement was proper only if the specific subdivisions of the statute under which defendant was convicted criminalized only conduct constituting forcible sex offenses. The Fifth Circuit ruled that the supplemental record supported a finding that the offense was a crime of violence. The charging documents alleged that defendant violated subdivision 1(c), by engaging in sexual penetration … using force or coercion to accomplish the penetration.” Although the guilty plea did not specify that he pled guilty to violating 1(c) as charged, nothing in the record suggested that he was not pleading guilty to the offense charged. Violating the statute through the use of coercion constitutes a forcible sex offense. U.S. v. Fernandez-Cusco, 447 F.3d 382 (5th Cir. 2006).

5th Circuit holds that burglary of tents or vessels used for human habitation is “burglary of a dwelling” for crime of violence purposes. (340) Defendant, convicted of illegally reentering the U.S. after deportation, received a 16-level “crime of violence” enhancement under § 2L1.2. He argued that his 2003 California burglary conviction was not “burglary of a dwelling,” a specifically enumerated “crime of violence,” because California courts construe the statute to include burglary of structures such as tents and vessels used for human habitation. Such structures do not fall within the scope of “generic burglary” as defined by the Supreme Court in Taylor v. U.S., 495 U.S. 575 (1990). The Fifth Circuit held that Taylor’s definition of generic burglary does not strictly apply to the specific offense “burglary of a dwelling” as used in the guidelines. Instead, “burglary of a dwelling” includes elements of generic burglary, as stated in Taylor, but it also includes, at a minimum tents or vessels used for human habitation. Therefore, the district court could properly consider § 2L1.2’s crime of violence enhancement at resentencing on unrelated grounds. U.S. v. Murillo-Lopez, 444 F.3d 337 (5th Cir. 2006).

5th Circuit applies reckless endangerment increase for driving van with alien crammed into console between front seats. (340) Defendant drove a minivan hiding an illegal alien in a compartment that had been built in the center console of the van. The compartment was located between the front seats of the vehicle. Although the alien gave a sworn statement that he was not locked in the compartment, had enough air to breathe, and could feel the vehicle’s air conditioning system, the Fifth Circuit affirmed a § 2L1.1 (b)(5) increase for “intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.” While the mere act of transporting aliens lying in the cargo area of a van, with no aggravating factors, does not create a substantial risk of death or serious bodily injury, see U.S. v. Solis-Garcia, 420 F.3d 511 (5th Cir. 2005), this case involved an additional aggravating factor. The alien here could not have easily extricated himself from the compartment – his head and upper body were stuffed in the console, and his feet were twisted around underneath the glove compartment. U.S. v. Rodriguez-Mesa, 443 F.3d 397 (5th Cir. 2006).

5th Circuit approves upward criminal history departure to double initial guideline range. (340) Defendant pled guilty to illegal reentry after deportation. At sentencing, the district court commented on defendant’s length criminal history, multiple deportations, and use of eleven aliases. The court concluded that defendant’s three criminal history points understated his criminal history, and departed under § 4A1.3 to impose a 60-month sentence. The Fifth Circuit affirmed the upward criminal history departure. The court’s reasons advanced the objectives set forth in 18 U.S.C. § 3553(a)(2) and were justified by the facts of the case. Defendant was a determined recidivist who posed an extra danger through his frequent use of false names. The fact that the 60-month sentence was nearly double the initial sentence range did not render this departure abusive considering all of the circumstances. U.S. v. Zuniga-Peralta, 442 F.3d 345 (5th Cir. 2006).

5th Circuit holds that conviction for second degree assault was crime of violence. (340) Defendant pled guilty to illegally reentering the U.S. after deportation. He had a prior Connecticut conviction for second degree assault under Conn. Gen. State § 53a-60(a). The Fifth Circuit held that the evidence supported a finding that the second degree assault was a crime of violence. Defendant contended that without a showing of the particular subdivision of 53a-60(a) he was convicted under, the crime did not constitute an aggravated assault because at least one subdivision (relating to causing a stupor by administering a drug without consent) did not constitute aggravated assault. However, the panel concluded that the charging documents (alleging his use of a glass bottle as a weapon) expressly charged a violation of subsection (2), a different subdivision. Subsection 2, which requires physical injury by a deadly weapon or dangerous instrument, is sufficiently similar to the Model Penal code’s definition of aggravated assault to constitute one. Aggravated assault is a crime of violence. U.S. v. Torres-Diaz, 438 F.3d 529 (5th Cir. 2006).

5th Circuit holds that possession of a listed chemical with intent to manufacture a controlled substance was not a “drug trafficking offense.” (340) Defendant pled guilty to attempting to enter the U.S. after deportation. Relying on U.S. v. Calverley, 11 F.3d 505 (5th Cir. 1993), vacated en banc, 37 F.3d 160 (5th Cir. 5th Cir. 1994), the district court treated his prior conviction for possession of a listed chemical with intent to manufacture a controlled substance as a “drug-trafficking offense” under § 2L1.2. The Fifth Circuit reversed. After Calverley, the Sentencing Commission amended the guidelines to specifically include possession of a listed chemical with intent to manufacture a controlled substance within the definition of “controlled substance offense” provided in U.S.S.G. § 4B1.2 While amending that guideline, however, the Sentencing Commission declined to similarly amend the definition of “drug trafficking offense” in § 2L1.2. Thus, although the general definitions of a drug-related offense are the same in both guidelines, only § 4B1.2 includes the offense of possession with intent to manufacture. U.S. v. Arizaga-Acosta, 436 F.3d 506 (5th Cir. 2006).

5th Circuit counts resisting arrest offense as separate from illegal reentry. (340) When police attempted to arrest defendant after a traffic violation, defendant struck one of the officers and then fled, stating that he could not go to jail since he had returned to the U.S. after being deported. After a brief chase, defendant was apprehended. He pled guilty to state charges of resisting arrest. Defendant then was convicted of illegal reentry after removal from the U.S. The Fifth Circuit held that the district court’s decision to count the resisting arrest offense as an offense separate from defendant’s illegal reentry offense for sentencing purposes was not plainly erroneous. Ordinarily, illegal reentry is “uncomplicated and is complete as soon as the entry or attempt is made.” When an illegal alien is “found in” the United States, the offense is more complex. However, although illegal reentry may be a continuing offense until an alien is found by the relevant authorities, the extended nature of the offense cannot shield multiple and “severable instances of unlawful conduct” from their appropriate consequences at sentencing. The resisting arrest was severable from the illegal reentry by time, place, and harmed societal interest. U.S. v. Vargas-Garcia, 434 F.3d 345 (5th Cir. 2005).

5th Circuit holds that later illegal reentry gives rise to offense separate from prior illegal reentry. (340) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. §1326(a) and (b)(2). The district court assessed two criminal history points for a 2001 conviction for making a false claim of citizenship. Defendant argued that his false claim of citizenship was relevant conduct under § 1B1.3(a)(1)(A). The Fifth Circuit disagreed because the 2001 false claim of citizenship offense did not occur during the offense of conviction. Being found in the U.S. by immigration officials is sufficient to extinguish a pre-existing and continuing offense arising from prior illegal reentries. Because the initial § 1326 violation is extinguished, a later reentry gives rise to a separate offense, and neither offense should be considered a part of the other under the Sentencing Guidelines. Thus, even if defendant’s false claim of citizenship occurred as part of a attempted illegal reentry in 2001, the two illegal reentries were separate offenses. The panel also rejected defendants’ argument that the claim of false citizenship offense was relevant conduct under § 1B1.3(a)(2) because they were part of the same course of conduct or common scheme or plan. However, defendant did not demonstrated that his 2001 and 2004 offenses were jointly planned or that either entailed the other, or that they were part of a common course of conduct. U.S. v. Alvarado-Santilano, 434 F.3d 794 (5th Cir. 2005).

5th Circuit finds record insufficient to determine whether aggravated battery was crime of violence. (340) The district court found that defendant’s prior conviction for aggravated battery was a crime of violence under § 2L1.2(b) (1)(A)(ii), and imposed a 16-level enhancement. Defendant argued that the offense was not a crime of violence because it did not have as an element “the use, attempted use, or threatened use of physical force against the person of another.” The statute in question, § 784.045 of the 1998 Florida Statues, provides three distinct ways to commit aggravated burglary, and the record did not indicate under which subsection defendant was convicted. The Fifth Circuit held that the record was insufficient to allow a determination of whether the aggravated burglary was a crime of violence. Although the PSR contained facts relating to defendant’s alleged conduct in committing the aggravated battery, the appellate court would not consider those facts because there were not explicit findings the Florida court made or used in adjudicating defendant’s guilt. U.S. v. Gonzalez-Chavez, 432 F.3d 334 (5th Cir. 2005).

5th Circuit holds that California conviction for purchase for sale constituted “drug trafficking offense.” (340) Defendant, who pled guilty to reentering the U.S. after deportation, had a previous California conviction for “possession for sale” of cocaine, in violation of Ca. Health & Safety Code, § 1351. One can be convicted under that statute if he either “possesses for sale” or “purchases for purposes of sale” certain drugs, including cocaine. Defendant argued that while “possession for sale” qualified as a drug trafficking offense under § 2L1.2(b)(1)(A)(i), “purchase for sale” did not, and because it was impossible to tell which prong of the statute he was convicted, he could not receive an enhancement for a prior drug trafficking offense. The Fifth Circuit held that “purchase for purposes of sale” involved “possession” with intent to distribute, and thus constituted a drug trafficking offense under § 2L1.2(b)(1)(A). It is not possible to purchase controlled substances without actually or constructively possessing them. “Purchase” involves the transfer of a right to control from the seller to the buyer. U.S. v. Palacios-Quinonez, 431 F.3d 471 (5th Cir. 2005).

5th Circuit says transporting four aliens lying side by side in cargo area of minivan did not create substantial risk of death or serious injury. (340) Defendant transported seven illegal aliens in a minivan, four of whom were lying side by side in the minivan’s cargo area. The rear seat had been removed. The other three aliens were seated in the bucket seats of the minivan, one in the front passenger seat and two in the middle row of seats. The Fifth Circuit reversed a § 2L1.1(b)(5) increase for creating “a substantial risk of death or serious bodily injury.” Transporting four aliens lying in the cargo area of a van, with no aggravating factors, does not constitute an inherently dangerous practice such as to create a substantial risk of death or serious bodily injury to those aliens. The only dangers associated with riding in the cargo area are generally the same dangers that arise from an individual not wearing a seatbelt in a moving truck. The situation was different from carrying people unrestrained in the bed of a pickup truck, because those in the van are protected by the passenger compartment of the vehicle. U.S. v. Solis-Garcia, 420 F.3d 511 (5th Cir. 2005).

5th Circuit holds that second degree burglary of a habitation is a crime of violence. (340) At issue was whether defendant’s prior Texas conviction for burglary of a habitation qualified as a crime of violence under U.S.S.G. § 2L1.2. Burglary of a dwelling is listed as a crime of violence under Note 1(b) to § 2L1.2 Defendant argued that the definition of a “habitation” under Texas law, which includes “each structure, appurtenant to or connected with the structure or vehicle” was broader the definition of “dwelling” as it is understood in a criminal law context. Relying on U.S. v. Hornsby, 88 F.3d 336 (5th Cir. 1996), the Fifth Circuit held that burglary of a habitation is the equivalent to the enumerated offense of a burglary of a dwelling. U.S. v. Garcia-Mendez, 420 F.3d 454 (5th Cir. 2005).

5th Circuit agrees that transporting aliens in cramped trailer created substantial risk of bodily injury. (340) Defendant acted as a guide in a conspiracy that involved transporting about 140 people in a cramped trailer at highway speeds and with inadequate ventilation. The Fifth Circuit affirmed a § 2L1.1(b)(5) adjustment for intentionally or recklessly creating a substantial risk of bodily injury to the aliens. This was precisely the type of transportation that Note 6 to § 2L1.1 gives as an example. The vehicle had substantially more passengers than its rated capacity, and the trailer was crowded and dangerous because of a lack of ventilation and because of the risk of an accident. U.S. v. Villanueva, 408 F.3d 193 (5th Cir. 2005).

5th Circuit holds that court plainly erred in treating shooting at occupied dwelling as crime of violence. (340) Defendant pled guilty to being unlawfully present in the U.S. after deportation. He argued for the first time on appeal that the sentencing court plainly erred by applying a 16-level increase under § 2L1.2(b)(1)(A)(ii) for previously committing a crime of violence, a 1994 Virginia conviction for shooting into an occupied dwelling. The Fifth Circuit held that the crime of violence enhancement constituted plain error. The term “crime of violence” includes “murder, manslaughter, kidnapping, aggravated assault, and other enumerated offenses, plus any offense “that has as an element the use, attempted use, or threatened use of physical force against the person of another.” See Note 1(b) to § 2L1.2. Shooting into an occupied dwelling is not one of the enumerated offenses that qualify as a crime of violence. In addition, it does not have, as a necessary element, the use, attempted use, or threatened use of force against another. A defendant could violate this statute merely by shooting a gun at a building that happens to be occupied without actually shooting, attempting to shoot, or threatening to shoot another person. Thus, the enhancement was error, and the error was plain. The error also affected defendant’s substantial right and the fairness of the judicial process given that it resulted in a sentence substantially greater than it would otherwise have been permitted under the Sentencing Guidelines. U.S. v. Alfaro, 408 F.3d 204 (5th Cir. 2005).

5th Circuit relies on stash house ledger to support finding that smuggling operation involved more than 100 aliens. (340) Police discovered 29 illegal aliens, including defendants, at a stash house. The Fifth Circuit found sufficient evidence to support a nine-level enhancement under § 2L1.1(b) (2)(C) for an offense involving more than 100 smuggled aliens. The ledger discovered at the stash house had about 114 unique names, some of which were names of illegal aliens discovered at the residence. Although fewer than 100 included phone numbers and contact information, an agent testified that the discrepancy was a result of different authors contributing to different parts of the ledger with varying recording methods. U.S. v. Angeles-Mendoza, 407 F.3d 742 (5th Cir. 2005).

5th Circuit applies risk of death or bodily injury increase for use of modified pickup truck to smuggle aliens. (340) Police discovered 29 illegal aliens, including defendants, at a stash house. The smuggling operation picked up illegal aliens in Mexico in pickup trucks that had been modified by removing the passenger seats to allow them to fit more aliens inside. Once at the stash house, the smuggled aliens were held until defendants received fees for the transport. The Fifth Circuit affirmed a two-level adjustment under § 2L1.1(b)(5) for “intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person…” The adjustment is appropriate where the smuggled aliens are transported in the bed of a pickup truck. U.S. v. Cuyler, 298 F.3d 387 (5th Cir. 2002). Although only one of the defendants was identified as the driver of the truck, the district court could properly find that the potentially dangerous method in which the aliens were transported was reasonably foreseeable to the other defendant, given evidence of his proximity to the altered vehicle, the fact that his brother was responsible for driving the aliens, and evidence of his leadership role within and extensive knowledge of the organization. U.S. v. Angeles-Mendoza, 407 F.3d 742 (5th Cir. 2005).

5th Circuit says California abstract of judgment cannot be used to prove crime was “drug trafficking offense.” (340) Defendant received a 16-level enhancement under § 2L1.2 (b)(1)(A)(i) based on a prior conviction for a “drug trafficking offense for which the sentence imposed exceeded 13 months.” The enhancement was based on defendant’s 1995 California conviction for violating Cal. Health & Safety Code § 11352(a). Although a copy of the indictment or judgment for the conviction could not be located, the court relied on an abstract of judgment which identified the § 1352 conviction as “sell cocaine.” The Fifth Circuit held that the district court erred in exclusively using a California abstract of judgment to determine that defendant’s prior conviction qualified as a drug trafficking offense. The preparation of the abstract is a clerical, not a judicial function, and fails to satisfy the “rigorous standard” required by the categorical approach outlined in Taylor v. U.S., 495 U.S. 575 (1990). The description “sell cocaine” was not a “conscious judicial narrowing of the charging document” but a shorthand abbreviation of the statute of conviction. U.S. v. Gutierrez-Ramirez, 405 F.3d 352 (5th Cir. 2005).

5th Circuit holds that taking indecent liberties with a child constitutes crime of violence under § 2L1.2. (340) Defendant, convicted of illegal reentry after deportation, received a 16-level increase under § 2L1.2(b)(1)(A)(ii) for being deported after conviction for a crime of violence. The Fifth Circuit held that the North Carolina offense of taking indecent liberties with a child, North Carolina General Statute § 14-202.1(a)(1), was a crime of violence because it constituted “sexual abuse of a minor.” It was unnecessary to examine whether the statute of conviction has force as an element, since “sexual abuse of a minor” is a specifically enumerated offense under the crime of violence definition in § 2L1.2. Taking indecent liberties with a child to gratify one’s sexual desire constitutes “sexual abuse of a minor” because it involves taking undue or unfair advantage of the minor and causing such minor psychological, if not physical, harm. U.S. v. Izaguirre-Flores, 405 F.3d 270 (5th Cir. 2005).

5th Circuit rules Texas offense of retaliation was not crime of violence under illegal re-entry guideline. (340) Defendant illegally reentered the U.S. after deportation, and received a 16-level increase under § 2L1.2 (b)(1)(A)(ii) based on a prior conviction of the Texas crime of retaliation. Relying on recent decisions in U.S. v. Acuna-Cuadros, 385 F.3d 875 (5th Cir. 2004), and U.S. v. Calderon-Pena, 383 F.3d 254 (5th Cir. 2004), the Fifth Circuit held that defendant’s retaliation conviction was not a crime of violence for purposes of the § 2L1.2 increase. A retaliation conviction does not require physical force – it is possible to harm an individual in retaliation without availing oneself of force against that person. U.S. v. Martinez-Mata, 393 F.3d 625 (5th Cir. 2004).

5th Circuit holds that drunk driving offense is not “crime of violence” under § 21.2. (340) Defendant pled guilty to illegal reentry after deportation. The district court imposed a 16-level crime of violence enhancement under § 2L1.2 (b)(1)(A)(ii) based on his prior Florida convictions for DUI/manslaughter and DUI/bodily injury. Based on its en banc decision in U.S. v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) and its recent decision in U.S. v. Dominguez-Ochoa, 386 F.3d 639 (5th Cir. 2004), the Fifth Circuit held that the DUI/bodily injury and DUI/ manslaughter statutes under which defendant was convicted did not require the intentional use of force, and therefore, did not qualify as crimes of violence. U.S. v. Valenzuela, 389 F.3d 1305 (5th Cir. 2004).

5th Circuit holds that burglary of building and unauthorized use of car not crimes of violence. (340) Defendant was convicted of illegally reentering the country after deportation. The district court found that defendant’s prior Texas convictions for burglary of a building and unauthorized use of a motor vehicle (UUMV) were crimes of violence, and imposed a 16-level increase under § 2L1.2(b)(1)(A)(ii). Neither offense is listed in Note 1(B)(ii)(II) to § 2L1.2 as a crime of violence; therefore, they only qualified if they had “as an element the use, attempted use, or threatened use of physical force against the person of another.” Note 1(B)(ii)(I). In U.S. v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004), the Fifth Circuit en banc held that for a non-enumerated offense to “have as an element” the use, attempted use, or threatened use, of physical force under § 2L1.2, the fact of physical force must be a fact that is necessary for a conviction. Neither the definition of burglary of a building nor that of UUMV required proof of force in order to convict. For example, the prosecutor could prove burglary of a building by proving that a defendant entered into an unoccupied office building without consent in an attempt to steal office equipment. Similarly, a defendant could be convicted of UUMV if he took his friend’s car up to the corner store without permission while the friend was out of town. Neither of these situations involved the use, attempted use, or threatened use of physical force against another person. Therefore, the Fifth Circuit ruled that the district court erred in applying the 16-level crime of violence enhancement. U.S. v. Rodriguez-Rodriguez, 388 F.3d 466 (5th Cir. 2004).

5th Circuit holds that burglary of a building and unauthorized use of car were not crimes of violence. (340) Defendant was convicted of illegal reentry after deportation. Defendant’s criminal history included a Texas conviction for burglary of a building in 1990 and unauthorized use of a motor vehicle (UUMV) in 1993. Classifying these offenses as crimes of violence, the district court applied a 16-level increase pursuant to U.S.S.G. §2L1.2(b)(1)(A)(ii). The Fifth Circuit held that burglary of a building and UUMV did not qualify as crimes of violence because they are not among the offenses listed as crimes of violence in Note 1(b)(ii)(II) under the 2001 version of §2L1.2, and did not have as an element “the use, attempted use, or threatened use of physical force against the person of another.” Although violent confrontations could occur in the course of either offense, neither required the actual, attempted, or threatened use of physical force as a necessary element. U.S. v. Rodriguez-Rodriguez, 388 F.3d 466 (5th Cir. 2004).

5th Circuit holds that Texas crime of criminally negligent homicide is not crime of violence. (340) Defendant received a 16-level enhancement under § 2L1.2(b)(1)(A)(ii) because his deportation followed a conviction for a crime of violence, a criminally negligent homicide under Texas law. The commentary to § 2L1.2 defines a crime of violence as either (I) an offense that has as an element use, attempted use, or threatened use of physical force, and (II) includes murder, manslaughter and other listed offenses. Several months after defendant was sentenced, the en banc court decided U.S. v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004), which held that to qualify as a crime of violence under subpart I, the use of force must be intentional. In light of this decision, the government did not contend that criminally negligent homicide was a crime of violence under subpart I, but instead, it claimed that the enhancement was proper under subpart II because Texas criminally negligent homicide was equivalent to the listed offense of manslaughter. The Fifth Circuit disagreed. Criminally negligent homicide has a mens rea of negligence; generic contemporary manslaughter of recklessness. Therefore, the two offenses are not equivalent. U.S. v. Dominguez-Ochoa, 386 F.3d 639 (5th Cir. 2004).

5th Circuit holds that state conviction for retaliation was not crime of violence. (340) Defendant was convicted of illegally reentry after deportation. The district court refused to apply a 16-level enhancement under § 2L1.2(b)(1)(A)(ii) because it found that defendant’s prior Texas conviction for retaliation did not qualify as a crime of violence. The Fifth Circuit agreed, holding that retaliation does not have as an element the use, attempted use, or threatened use of physical force. The retaliation statute applies if a person, in retaliation, intentionally “harms or threatens to harm another by an unlawful act.” The term “harm” is defined as “anything reasonably regarded as loss, disadvantage, or injury,…” Even if this definition of the word “harm” could be imported into the elements of the retaliation offense, a procedure the panel found “questionable,” none of the words that defined harm – loss, disadvantage, or injury – required the use of physical force. Moreover, while a court may look to the indictment when a statute has a series of disjunctive elements to determine which elements a defendant’s conviction satisfies, the court could consider that defendant struck and choked his sister only to determine under which alleged element (loss, disadvantage or injury) defendant was convicted. The court could not consider those same facts to determine whether the use of physical force was an element of the retaliation statute. U.S. v. Acuna-Cuadros, 385 F.3d 875 (5th Cir. 2004).

5th Circuit, en banc, holds that child endangerment is not crime of violence. (340) Defendant was convicted of illegal reentry after deportation. In U.S. v. Calderon-Pena, 339 F.3d 320 (5th Cir. 2003), a Fifth Circuit panel held defendant’s prior conviction for child endangerment constituted a crime of violence, warranting a 16-level enhancement under § 2L1.2. On rehearing en banc, the Fifth Circuit held, in accordance with its recent decision in U.S. v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) (en banc), that child endangerment did not have as an element “the use, attempted use, or threatened use of physical force against the person of another,” and thus did not qualify as a crime of violence. The indictment permitted the court to narrow down the statutory options to the offense of “knowingly … by act … engag[ing] in conduct that places a child younger than 15 years in imminent danger of … bodily injury.” This offense does not have the use, attempted use, or threatened use of physical force against the victim’s person as a required element. Under Vargas-Duran, the plain meaning of the term “use” requires intentionality. Also, if any set of facts would support a conviction without proof of that component, then that component is not an element of the crime. Clearly, the offense could be successfully prosecuted without proof of attempted use of force. U.S. v. Calderon-Pena, 383 F.3d 254 (5th Cir. 2004).

5th Circuit finds record insufficient to decide if terroristic threats offense was crime of violence. (340) Defendant pled guilty to being present in the U.S. after a previous deportation, in violation of 8 U.S.C. § 1326(a) and (b). The district court held that defendant’s prior Pennsylvania conviction for making terroristic threats was a crime of violence, warranting a 16-level enhancement under § 2L1.2(b)(1)(A)(ii). The Fifth Circuit held that the record was insufficient to make this determination, and remanded. The statute under which defendant was convicted, 18 PA. CONS.STAT. § 2706(a) (2003), contains one subsection which arguably qualifies as a crime of violence and two subsections which arguably do not. Circuit precedent permits a court to look beyond the fact of conviction to determine the elements of the statute to which defendant pled guilty. However, the record did not contain an information or indictment charging defendant with the terroristic threats offense. The complaint stated only that defendant was accused of violating the Pennsylvania statute. The sentencing sheet was similar, and did not cite the section number of the statute or include language indicating which of the three subsections may have been involved. Because the record did not reflect the elements to which defendant pled guilty, the panel remanded to the district court for the government to supplement the record. U.S. v. Martinez-Paramo, 380 F.3d 799 (5th Cir. 2004).

5th Circuit holds that amendment excluding juvenile convictions from increased penalty was substantive. (340) Defendant pled guilty to illegal reentry after deportation, and received a four-level increase under § 2L1.2(b)(1)(D) because he had been deported following a felony conviction. After defendant was sentenced, the commentary to Note 1(A)(iv) to § 2L1.2 was amended to provide that the subsection (b)(1) increase does not apply to a conviction for an offense committed before the defendant was 18 years old unless such a conviction is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted. The amendment was not included in the list of amendments to be applied retroactively. The Fifth Circuit ruled that the amendment was a substantive change, and therefore did not apply to defendant retroactively. The court properly counted defendant’s juvenile adjudications as felony convictions under the 2002 guidelines. U.S. v. Lopez-Coronado, 364 F.3d 622 (5th Cir. 2004).

5th Circuit, en banc, holds that “use” of force under crime of violence definition requires intent to use force. (340) Defendant received a 16-level increase under § 2L1.2 for being deported following conviction for a crime of violence, intoxication assault under Texas law. On appeal, a Fifth Circuit panel affirmed the increase, holding that intoxication assault required the use of force, and as such, met the definition of a crime of violence. On rehearing en banc, the Fifth Circuit held that (1) the “use” of force requires that a defendant intentionally avail himself of that force; (2) the intentional use of force must be an element of the predicate offense if that offense is to be used to enhance a defendant’s sentence; and (3) the intentional use of force is not an element of the Texas crime of intoxication assault. Therefore, the court remanded for resentencing without the enhancement. U.S. v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) (en banc).

5th Circuit holds that portion of sentence spent on parole is included in “sentence imposed.” (340) Defendant pled guilty to being found illegally in the U.S. after deportation. Section 2L1.2(b)(1) provides for an enhancement if the defendant was deported after a conviction for a felony drug trafficking offense. The amount of the enhancement varies depending on whether “the sentence imposed” for the felony drug trafficking offense exceeded 13 months (16-level enhancement under subsection (A)), or was 13 months or less (12-level enhancement under subsection (B)). Defendant had been sentenced to five years’ imprisonment for a felony drug offense; however, he was released on parole after having served only four months. Note 1(a)(iv) provides that if “all or any part of a sentence of imprisonment was probated, suspended, deferred, or stayed, ‘sentence imposed’ refers only to the portion that was not probated, suspended, deferred or stayed.” The Fifth Circuit held that because parole was not included in the list of exceptions in Note 1(a)(iv), any portion of a sentence spent on parole shall be included in the calculation of the “sentence imposed” under § 2L1.23(b)(1). U.S. v. Mendez-Villa, 346 F.3d 568 (5th Cir. 2003).

5th Circuit holds that possession of short-barreled firearm was aggravated felony. (340) In 1997, defendant was convicted in Texas of possession of a prohibited weapon, a short-barrel firearm, in violation of Tex. Penal Code § 46.05. Defendant was deported. In October 2001, he was charged with being illegally present in the U.S. The district court, applying the November 2001 guidelines, determined that defendant should receive a 16-level increase under § 2L1.2(b)(1) (A)(iii) because of his prior conviction for “a firearms offense.” Defendant argued for the first time on appeal that the use of the 2001 guidelines violated the ex post facto clause because he would not have received a 16-level enhancement under the 2000 guidelines. The Fifth Circuit found no ex post facto violation, since the 16-level increase was proper under either version of the guidelines. Under the 2000 guidelines, the 16-level enhancement applied when the prior conviction was an “aggravated felony,” as defined in 8 U.S.C. § 1101(a)(43). Under subsection (E)(iii) of § 1101(a)(43), an aggravated felony includes an “offense described in …[26 U.S.C.] 5861 … (relating to firearms offense).” The federal statute cited, 26 U.S.C. § 5861, is almost identical to the Texas statute, each proscribing the same type of firearm. Had the district court at least been called upon at sentencing to consider the question, it would not have been a “clear” or “obvious” error for it to conclude that the Texas offense was “described in” § 5861. U.S. v. Diaz-Diaz, 327 F.3d 410 (5th Cir. 2003).

5th Circuit holds that Travel Act conviction was “drug trafficking offense.” (340) Guideline § 2L1.2(b)(1)(A)(i) provides for a 16-level enhancement if the defendant was deported after a conviction for a felony that is “a drug trafficking offense for which the sentence imposed exceeded 13 months….” Defendant had previously been convicted of violating the Travel Act, 18 U.S.C. § 1952, which prohibits interstate travel and communication in aid of racketeering. The Travel Act indictment charged defendant with interstate transportation in aid of racketeering “with the intent to promote cocaine and marijuana trafficking.” Defendant argued that under the “categorical” approach to classifying offenses, the Travel Act violation did not qualify as a drug trafficking offense because the statute targets several forms of unlawful activity, many of which do not involve drugs or drug trafficking. The Fifth Circuit held that the district court did not err in looking to the conduct underlying defendant’s § 1952 conviction in applying § 2L1.2(b)(1) (A)(i). Cases applying a categorical approach to the definition of a crime of violence were not applicable here, since the definition of a drug trafficking offense does not use the words “by its nature.” Defendant’s Travel Act conviction could be classified as a drug trafficking offense without elaborate consideration of his underlying conduct. The court had only to look at the charging indictment to find that the prior Travel Act violation was one involving drug trafficking. The district court did not err in concluding that defendant’s prior conviction justified a 16-level increase under § 2L1.2. U.S. v. Rodriguez-Duberney, 326 F.3d 613 (5th Cir. 2003).

5th Circuit holds that conviction for carrying concealed dagger was not crime of violence. (340) Defendant received a 16-point aggravated felony enhancement under § 2L1.2(b)(1)(A) based on his California conviction for possession of a deadly weapon, an adjustable dagger. The guidelines define an aggravated felony to include a crime of violence under 18 U.S.C. § 16. Section 16 states that a crime of violence is (1) an offense that has an element the use, attempted use, or threatened use of physical force, or (b) any felony that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. The Fifth Circuit held that the California concealed dagger offense was not a crime of violence. It did not qualify under § 16(a) because the threatened, actual or attempted use of force was not an element. Under U.S. v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001), § 16(b) requires “recklessness as regards the substantial likelihood that the offender will intentionally employ force against the person or property of another in order to effectuate the commission of the offense.” Thus, Chapa-Garza found that felony DWI was not a crime of violence because the offense begins when the defendant begins operating a vehicle while intoxicated, and force is never used to commit the offense. Similarly, defendant perpetrated the possession offense once he took possession and concealed the dagger. Although violence may eventually result from the offense, once the necessary elements are present for the offender to have perpetrated the offense, that eventuality is outside the scope of the analysis. U.S. v. Medina-Anicacio, 325 F.3d 638 (5th Cir. 2003).

5th Circuit holds that crime is a felony if conviction exposes defendant to sentence of more than one year. (340) Defendant, convicted of illegally reentering the country after having been deported, argued that his prior conviction was not a felony crime of violence, and thus did not warrant a 16-level increase under § 2L1.2(b)(1)(A). Defendant’s conviction for attempted indecency with a minor by exposure constituted a “crime of violence.” Defendant argued, however, that the conviction was not a “felony” crime of violence because, according to his plea agreement and Texas law, he was subject to no more than one year in prison. Under Texas law, indecency with a minor by exposure is a Texas state jail felony punishable by a maximum sentence of two years. However, defendant’s plea bargain provided that his case would be handled in accordance with Tex. Penal Code § 12.44, which allows punishment as if the crime were a Class A misdemeanor with a one-year maximum sentence, and defendant was sentenced to 90 days. Texas case law indicates that a crime remains a felony even if punished as a misdemeanor under § 12.44. The Fifth Circuit held that a crime is a “felony,” for purposes of U.S.S.G. § 2L1.2(b)(1) and commentary note 1(B)(iv) if, by the terms of the criminal statute, a conviction exposes a defendant to a sentence of imprisonment of more than one year, regardless of whether the defendant is sentenced under Texas Penal Code § 12.44. U.S. v. Rivera-Perez, 322 F.3d 350 (5th Cir. 2003).

5th Circuit holds that sentence imposed upon revocation of probation was part of punishment for prior conviction. (340) Defendant pled guilty to illegally reentering the country after deportation. The district court imposed a 16-level increase under § 2L1.2(b)(1)(A)(i), finding that his prior felony conviction was a drug-trafficking offense “for which the sentence imposed exceeded 13 months.” Defendant had been sentenced in 1994 for possession of a controlled substance to ten years’ probation, and for delivery of a controlled substance to ten years’ imprisonment, probated for ten years. His probation was revoked in 2000, and he was sentenced to two years’ imprisonment for the delivery offense. The Fifth Circuit held that the district court properly counted the two years imposed on probation revocation as part of the sentence “imposed for” the drug trafficking crime. Because the two-year sentence exceeded 13 months, defendant properly received the 16-level enhancement. U.S. v. Compian-Torres, 320 F.3d 514 (5th Cir. 2003).

5th Circuit says court not limited to statute of conviction and charging instrument in making aggravated felony finding. (340) Defendant pled guilty to being found in the U.S. after a prior deportation, in violation of 8 U.S.C. § 1326(a) and (b). He argued that the district court erred in going beyond the statute of conviction and charging instrument to determine that his prior conviction was an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(A)(vii). He noted that cases interpreting the “career offender” guideline, §§ 4B1.1 and 4B1.2, limit consideration to the conduct charged in the indictment, rather than the underlying conduct of the offense. The Fifth Circuit found no error. The cases cited by defendant interpreting the career offender guideline were based on the specific language contained in the commentary to U.S.S.G. § 4B1.2 limiting the sentencing court’s inquiry to the conduct alleged in the indictment. Neither § 2L1.2 nor its commentary contains such limiting language. U.S. v. Sanchez-Garcia, 319 F.3d 677 (5th Cir. 2003), abrogated by U.S. v. Rodarte-Vasquez, 488 F.3d 316 (5th Cir. 2007).

5th Circuit applies reckless endangerment increase for leading aliens through Texas brush in June. (340) Defendant guided nine undocumented aliens from Mexico into Texas, walking through the desert. One of the aliens died from “probable heat stroke,” and two others were hospitalized for two weeks from their injuries. The Fifth Circuit affirmed a reckless endangerment increase under § 2L1.1(b)(5), ruling that leading the group on foot through the South Texas brush in June constituted reckless conduct. Conduct need not be specified in the guidelines to be reckless. See U.S. v. Cuyler, 298 F.3d 387 (5th Cir. 2002). The adjustment applies to “a wide variety of conduct.” Here, the temperature on June 5 reached 100 degrees and the temperature on June 6 reached 105 degrees. Each of the aliens had only one bottle of water (which was depleted six hours after the journey began) and two cans of food, and several aliens told border patrol agents that they would have bought more water had defendant accurately advised them of the length of the journey. The aliens requested, and were denied, longer rest periods. The fact that one alien died and two others required hospitalization “underscore[d] the dangerous nature of the trek through the brush.” Moreover, although defendant had no control over the conditions in the South Texas desert, the phrase “creating a substantial risk” focuses on whether the chosen manner of traveling is “a very dangerous way to travel.” U.S. v. Garcia-Guerrero, 313 F.3d 892 (5th Cir. 2002).

5th Circuit holds that enhancement does not require defendant to have intended to cause death. (340) Defendant guided nine undocumented aliens from Mexico into Texas, walking through the desert. One of the aliens died from “probable heat stroke,” and two others were hospitalized for two weeks from their injuries. The Fifth Circuit affirmed an eight-level enhancement under § 2L1.1(b)(6)(4) for the death of one of the undocumented aliens. Defendant did not have to intend the death for the enhancement to apply. Moreover, there was a sufficient causal connection between defendant’s conduct and the death. The autopsy report, the weather conditions, the lack of water and food, the manner of death and the need for two other group members to receive extensive medical treatment as a result of the extreme heat, all supported the district court’s finding that the undocumented alien died from conditions encountered during the dangerous journey. U.S. v. Garcia-Guerrero, 313 F.3d 892 (5th Cir. 2002).

5th Circuit holds that Texas jail felony of simple possession of marijuana was felony. (340) At the time of defendant’s prior “state jail felony” conviction for possession of marijuana, Texas law provided that courts could impose a sentence of incarceration of between 180 days and two years for commission of state jail felonies. However, for first-time offenders, the law mandated that courts suspend the sentence and place the defendant on community supervision. Defendant argued that his prior conviction did not constitute an aggravated felony under 8 U.S.C. § 1326(b)(2) and U.S.S.G. § 2L1.2(b)(1)(C) because, as a first-time offender, he was susceptible only to community supervision. However, state jail felonies were created in Texas to relieve prison overcrowding, rather than as a result of a policy decision to treat simple drug possession as a medical problem best handled by treatment and education. Moreover, state jail felons suffer the same disabilities shared by other felons, such as loss of the right to vote or be elected to hold public office. Given the reason for creation of the state jail felony category and the fact that such crimes were still substantively regarded as felonies, the Fifth Circuit found that the applicable punishment range for state jail felonies was 180 days to two years, with the fact that a defendant is a first-time offender being a mere “sentencing factor” that resulted in automatic suspension of the sentence of confinement. U.S. v. Caicedo-Cuero, 312 F.3d 697 (5th Cir. 2002).

5th Circuit holds that guidelines use two different definitions of drug trafficking crimes for aggravated felony purposes. (340) Prior to 2001, U.S.S.G. § 2L1.2 provided for a 16-level enhancement if the defendant had a previous conviction for an aggravated felony, as defined at 8 U.S.C. § 1101(a)(43). Under this definition, state felony convictions for simple possession were aggravated felonies. In 2001, § 2L1.2 was amended to provide for a 16-level enhancement only for “a drug trafficking offense” for which the sentence imposed exceeded 13 months, a 12-level enhancement for “a felony drug trafficking offense” for which the sentence imposed was 13 months or less, and an eight-level increase if the prior conviction was for an “aggravated felony. “Drug trafficking offense” is defined in the application notes to require an “intent to manufacture, import, export, distribute, or dispense,” and clearly excludes simple possession of a controlled substance. However, an “aggravated felony” still has the meaning given that term in 8 U.S.C. § 1101(a)(43). The Fifth Circuit held that the guideline implicates two distinct, and conflicting, definitions of drug trafficking crimes. The definition of “drug trafficking crime” found in § 2L1.2 does not supercede that in 8 U.S.C. § 1101(a)(43) for purposes of the aggravated felony enhancement. Although using two definitions makes the guideline less clear, it is not impermissible, and appears to be purposeful. The amendments’ purpose was to apply a graduated scheme of penalties to aggravated felonies depending on their severity. U.S. v. Caicedo-Cuero, 312 F.3d 697 (5th Cir. 2002).

5th Circuit holds that conviction for transporting aliens within the U.S. was “alien smuggling offense.” (340) Guideline § 2L1.2(b) (1)(A)(vii) provides for a 16-level enhancement if a defendant was previously deported for an alien smuggling offense. The term “alien smuggling offense” is not defined. The district court found that defendant’s conviction for transporting illegal aliens for profit, in violation of 8 U.S.C § 1324(a)(1)(A)(ii), constituted a alien smuggling offense. The Fifth Circuit agreed. The plain meaning of smuggling is not limited to importing and exporting. See Webster’s Ninth New Collegiate Dictionary (1990) (defining smuggling to include “to convey or introduce surreptitiously”). Moreover, in U.S. v. Monjaras-Casteneda, 190 F.3d 326 (5th Cir. 1999), the court held that transporting is related to alien smuggling. There is no ambiguity, and therefore, the rule of lenity was inapplicable. U.S. v. Solis-Campozano, 312 F.3d 164 (5th Cir. 2002).

5th Circuit holds that prior felony conviction need not be charged in indictment. (340) Defendant was convicted of illegally reentering the U.S. after deportation, in violation of 8 U.S.C. § 1326(a)(b)(2). He argued that a prior felony conviction that resulted in his increased sentence was an offense element that should have been charged in the indictment. He acknowledged that his argument was foreclosed by the Supreme Court’s decision in Almendarez-Torres v. U.S., 523 U.S. 224 (1998), but sought to preserve the issue for Supreme Court review in light of Apprendi v. New Jersey, 530 U.S. 466 (2000). The Court in Apprendi, while acknowledging that Almendarez-Torres may be logically inconsistent with its opinion, nonetheless chose not to overrule it. Accordingly, the Fifth Circuit found itself bound by Almendarez-Torres. U.S. v. Reyes-Maya, 305 F.3d 362 (5th Cir. 2002).

5th Circuit rules convictions for driving under the influence were not “crimes against the person.” (340) Defendant illegally reentered the U.S. after deportation. The maximum term of imprisonment for violations of § 1326(a) is two years, and the maximum term of supervised release is one year. However, the district court found that defendant’s three prior misdemeanor convictions for driving under the influence were “crimes against the person,” thereby triggering the enhanced sentencing in 8 U.S.C. § 1326(b)(1), which authorizes up to three years of supervised release. Construing the term in accordance with its accepted common law definition, the Fifth Circuit held that “crimes against the person” is an offense that, by its nature, involves a substantial risk that the offender will intentionally use physical force against another person. “Crimes against the person” plainly did not include defendant’s misdemeanor convictions for driving under the influence because the offense did not involve the intentional use or threat of force. U.S. v. Trejo-Galvan, 304 F.3d 406 (5th Cir. 2002).

5th Circuit holds that Texas conviction for injury to child was not crime of violence. (340) Defendant received a 16-level aggravated felony enhancement under § 2L1.2(b)(1)(A) based on the court’s finding that his prior Texas conviction for injury to a child constituted a crime of violence under 18 U.S.C. § 16. The Texas statute applies to a defendant who knowingly or recklessly, or recklessly by omission, causes bodily or serious mental injury to a child. A crime of violence is defined in § 16 as (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used ….” The Fifth Circuit reversed the increase, holding that the injury to a child conviction was not a crime of violence. The government conceded that § 16(a) was not applicable because the statutory definition of the offense did not explicitly require the application of force as an element. Moreover, the offense did not qualify as a crime of violence under § 16(b) because there was not a substantial risk that physical force would be used to effectuate the offense. The offense of injury to a child is results-oriented. Thus, many convictions stem from an omission rather than an intentional use of force. Thus, the offense is not, “by its nature” a crime of violence under § 16(b). U.S. v. Gracia-Cantu, 302 F.3d 308 (5th Cir. 2002).

5th Circuit holds that listed offenses are per se crimes of violence under new § 2L1.2 commentary. (340) Guideline § 2L1.2(b)(1)(A)(ii) provides for a 16-level enhancement for a defendant who illegally reenters the country after previously being deported following a conviction for a crime of violence. The 2001 commentary to § 2L1.2 defines a crime of violence as “(I) … an offense … that has as an element the use, attempted use, or threatened use of physical force against the person of another; and (II) includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including sexual abuse of a minor), ….” Application note 1(B)(ii). Defendant argued that his prior conviction for aggravated sexual assault of a child under 14 was not a crime of violence because the “use, attempted use, or threatened use of physical force against the person of another” was not a necessary element of the crime. The Fifth Circuit held that the listed offenses in subparagraph II constitute crimes of violence, regardless of their elements under state law. The Commission has predetermined that, regardless of their circumstances or the way they are defined by state laws, the listed offenses are inherently violent and forceful, or inherently risk violence and use of force. This interpretation is consistent with interpretations of the definition of crime of violence in § 4B1.2, the career offender guideline. Sexual abuse of a minor is a crime of violence, even if no element of physical force is necessary to prove it. U.S. v. Rayo-Valdez, 302 F.3d 314 (5th Cir. 2002).

5th Circuit holds that transporting aliens in bed of pickup truck creates substantial risk of injury. (340) Defendant was driving ten undocumented aliens on the highway in his pickup truck when he was stopped by police. Seven people were riding in the cab of the truck, and four people were lying down in the bed of the pickup. The district court applied a two-level increase under § 2L1.1(b)(5) for “intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person.” The Fifth Circuit affirmed, holding that transporting aliens on the highway in the bed of a pickup truck creates a substantial risk of injury. Aliens who are unrestrained easily can be thrown from the bed of the pickup truck in the event of an accident or other driving maneuver of the sort that is unavoidable in highway driving. U.S. v. Cuyler, 298 F.3d 387 (5th Cir. 2002).

5th Circuit holds carrying a firearm into a bar is not a crime of violence. (340) The district court increased defendant’s sentence for re-entering the United States after deportation based on his prior conviction for unlawfully carrying a firearm in a place licensed to sell alcoholic beverages. On appeal, the Fifth Circuit reversed, holding that the underlying conviction was not a “crime of violence” within the meaning of 18 U.S.C. § 16(b), and 8 U.S.C. § 1101(a)(43)(F). The panel relied on the recent decision in U.S. v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001) which found that a Texas felony DWI charge did not constitute a “crime of violence” because 18 U.S.C. § 16(b) requires “recklessness as regards the substantial likelihood that the offender will intentionally employ force against the person or property of another in order to effectuate the commission of the offense.” Here, the intent portion of the crime of bringing a gun onto premises licensed to sell alcoholic beverages goes only to the act of carrying a firearm onto the premises. “It does not go to any supposed intentional force against another’s person or property.” The panel suggested that its holding might be in conflict with the recent decision in U.S. v. Rivas-Palacios, 244 F.3d 396 (5th Cir. 2001), which held that the Texas crime of possession of an unregistered short-barreled shotgun was a crime of violence. But the panel noted that Rivas-Palacios did not purport to apply the “then days-old” Chapa-Garza framework, “and we conclude that to the extent that Rivas-Palacios conflicts with our holding today it also conflicts with Chapa-Garza.” U.S. v. Hernandez-Neave, 291 F.3d 296 (5th Cir. 2001).

5th Circuit finds sufficient evidence that two aliens were involved in each smuggling trip. (340) Defendants paid parents to permit their children to accompany immigrants across the border from Mexico to the U.S. The Border Patrol had a policy of returning families with young children to Mexico rather than detain them and charge them with illegal entry. At sentencing, an INS agent testified that several witnesses admitted renting out their children to the smuggling operation about 15 times. The INS assumed that defendants were bringing in couples on each trip, except for one trip where it was known that only one immigrant was involved, and thus estimated the total number of illegal immigrants smuggled in the 15 trips was 29. Based on this estimate, the district court applied a § 2L1.1(b)(2) increase for an offense involving 24-99 illegal aliens. Defendants argued that the fact that only one person was involved in one of the smuggling trips rendered the assumption that two persons were smuggled on the other trips too speculative to support the six-level increase. The Fifth Circuit found that the district court’s estimate of 29 immigrants was reasonable. The whole purpose of using the children was so that the smuggled aliens could pose as a family unit. The parents were told that immigrants would pose as the children’s “parents,” not “parent.” U.S. v. Cabrera, 288 F.3d 163 (5th Cir. 2002).

5th Circuit holds that § 2X1.1’s “reasonable certainty” standard applies to intended not actual conduct. (340) Defendants were convicted of conspiring to induce illegal immigrants to enter the U.S. Guideline § 2X1.1 directs sentencing courts to use the base offense level from the guideline for the applicable offense and to apply “any adjustment from [that] guideline for an intended offense conduct that can be established with reasonable certainty.” The district court increased defendant’s offense level by six under § 2L1.1(b)(2) for an offense involving between 25-99 aliens. Defendants argued that the government did not establish “with reasonable certainty” that more than 25 aliens were involved in his offense. The Fifth Circuit held that the reasonable certainty standard only applies to intended conduct, not actual conduct. This makes sense because “unless other specified,” the Guidelines’ definition of relevant conduct is limited to conduct that has occurred. Here, the district court based the § 2L1.1 increase on its finding that the conspiracy involved the actual smuggling, not the intended smuggling, of 25 or more immigrants. U.S. v. Cabrera, 288 F.3d 163 (5th Cir. 2002).

5th Circuit holds that Texas DWI was not crime of violence or aggravated felony. (340) Defendant, convicted of illegally reentering the country after deportation, received a 16-level aggravated felony increase for a Texas state DWI conviction. While the case was on appeal, the Fifth Circuit held that Texas DWI is not a crime of violence or an aggravated felony under 18 U.S.C. § 16(b). Changes in sentencing law between sentencing and appeal that benefit the defendant require an appellate court to reverse and remand for resentencing. Accordingly, the Fifth Circuit ordered the district court to recalculate defendant’s sentence without the 16-level enhancement. U.S. v. Cervantes-Nava, 281 F.3d 501 (5th Cir. 2002).

5th Circuit holds that violent misdemeanor constituted aggravated felony. (340) Defendant, convicted of illegally reentering the U.S. after deportation, received a § 2L1.2 aggravated felony enhancement based on his 1994 Texas conviction for assault with bodily injury, a misdemeanor offense under Texas law. Defendant argued that his misdemeanor conviction could not, by definition, be an aggravated felony. The Fifth Circuit held that the misdemeanor qualified as an “aggravated felony” under the governing definition, since defendant had been sentenced to one year in prison for it and it was a crime of violence. Note 1 to § 2L1.2 says that “felony offense” means any federal, state, or local offense punishable by imprisonment for a term exceeding one year.” In contrast, it says that the term “aggravated felony” is defined at 8 U.S.C. § 1101(a)(43). Section 1101(a)(43)(F), in turn, defines “aggravated felony” to include “a crime of violence … for which the term of imprisonment [is] at least one year.” Under the plain language of this definition, there is no requirement that the offense actually have been a felony, as that term is conventionally understood. Aggravated felony is a term of art, one that includes all violent crimes punishable by one year’s imprisonment, including certain violent misdemeanors. U.S. v. Urias-Escobar, 281 F.3d 165 (5th Cir. 2002).

5th Circuit holds that rule of lenity did not apply where previous case interpreted “aggravated felony.” (340) Defendant argued that under the rule of lenity, his prior Texas conviction for cocaine possession was not an “aggravated felony” requiring application of a 16-level enhancement under § 2L1.2(b)(1)(A). However, in U.S. v. Hinojosa-Lopez, 130 F.3d 691 (5th Cir. 1997), the Fifth Circuit held that a state conviction is an “aggravated felony” if “(1) the offense was punishable under the Controlled Substances Act and (2) it was a felony” under applicable state law. Defendant did not dispute that, as a matter of statutory construction, his challenge was foreclosed by Hinojosa-Lopez. However, he contended that under the “constitutional rule-of-lenity,” his objection to the increase presented an issue of first impression. The Fifth Circuit found the rule of lenity inapplicable. The rule of lenity applies “only when, after consulting traditional canons of statutory construction, [a court is] left with an ambiguous statute.” U.S. v. Shambani, 513 U.S. 10 (1994). The rule-of-lenity is a rule of statutory construction rather than a separate constitutional framework for raising claims. The circuit has already expressed its interpretation of the term “aggravated felony” in Hinojosa-Lopez. U.S. v. Rivera, 265 F.3d 310 (5th Cir. 2001).

5th Circuit says Almendarez-Torres still good law after Apprendi. (340) Section 1326(a) of Title 8 provides for a maximum sentence of two years’ imprisonment for illegally reentering the country after deportation. Section 1326(b)(2) increases the maximum punishment to 20 years if the defendant was deported after conviction for an aggravated felony. Defendant argued that § 1326(b) creates a separate offense and that an element of the separate offense is a prior aggravated felony. In Almendarez-Torres v. U.S., 523 U.S. 224 (1998), the Supreme Court rejected this argument. Defendant argued that the Supreme Court’s recent decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) “cast serious doubt” on Almendarez-Torres’s validity. The Fifth Circuit agreed that Apprendi cast doubt on Almendarez-Torres, but found that because Apprendi did not overrule that decision, Almendarez-Torres still controlled. Therefore, defendant’s argument was foreclosed. U.S. v. Rodriguez-Montelongo, 263 F.3d 429 (5th Cir. 2001).

5th Circuit holds that Texas graffiti offense was not crime of violence. (340) Defendant illegally reentered the U.S. after deportation. The district court imposed a 16-level increase under § 2L1.2(b)(1)(A), finding defendant had previously been convicted of an aggravated felony. The Fifth Circuit reversed, ruling that defendant’s Texas criminal mischief conviction did not involve a crime of violence under 18 U.S.C. § 16, and thus did not constitute an aggravated felony. A felony is considered a crime of violence if the offense, “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Defendant admitted that he had spray-painted graffiti on a building and a fence. Although graffiti causes damage to property, it does not involve “a substantial risk” that “destructive or violent” force will be used in the course of unlawfully “making marks” on another person’s property. U.S. v. Landeros-Gonzales, 262 F.3d 424 (5th Cir. 2001).

5th Circuit rules court reduced sentence after inmate “boot camp” so it no longer qualified as aggravated felony. (340) The district court found that defendant’s prior Colorado felony conviction for menacing constituted an aggravated felony, which subjected defendant to a 16-level enhancement under § 2L1.2(b)(10(A). Defendant argued that the conviction was not an aggravated felony because his sentence, which was originally four years’ imprisonment, was subsequently reduced to less than a year. After he completed a state “military boot camp” for inmates, i.e. Colorado’s Regimented Inmate Training Program (“RITP”), the state court issued an order entitled “Reconsideration of Sentencing,” which released defendant to immigration authorities and placed him on probation should he return to the U.S. The Fifth Circuit held that the Colorado court, pursuant to the RIPT Act and Rule 35(b), reduced defendant’s sentence from imprisonment to probation, thereby removing the menacing conviction from the aggravated felony definition. Defendant’s sentence was not, as the government contended, suspended and held in abeyance in case defendant breached a condition of probation. Colorado law did not permit the court to reduce defendant’s sentence to probation and then suspend his term of imprisonment. Even in the federal system a Rule 35(b) reduction of sentence from imprisonment to probation does not involve a suspension of sentence. U.S. v. Landeros-Arreola, 260 F.3d 407 (5th Cir. 2001).

5th Circuit holds that possession of unregistered firearm is a crime of violence and aggravated felony. (340) Defendant received a 16-level aggravated felony increase under § 2L1.2(b)(2) based on his prior Texas conviction for unlawfully possessing a short-barreled shot-gun. The definition of aggravated felony in 8 U.S.C. § 1103(a)(43) includes a “crime of violence” (as defined in 18 U.S.C. § 16) for which the term of imprisonment is at least one year. The Fifth Circuit has not addressed whether possession of a sawed-off shotgun is a crime of violence, although it has held that possession of a pipe bomb is a crime of violence under 18 U.S.C. § 924(c)(3). See U.S. v. Jennings, 195 F.3d 795 (5th Cir. 1999). The Jennings court reasoned that the only firearms that must be registered are those “that Congress has found to be inherently dangerous and generally lacking usefulness, except for violent and criminal purposes … The primary reason that unregistered possession of these particular weapons is a crime is the virtual inevitability that such possession will result in violence.” Following the reasoning in Jennings, the Fifth Circuit held that possession of any unregistered firearm is a “crime of violence” as defined in 18 U.S.C. § 16. The unlawful possession of any unregistered firearm, a sawed-off shotgun in this case, “involves a substantial risk that physical force against the person or property of another” will occur. Because defendant’s conviction was for a crime of violence, he properly received the aggravated felony increase. U.S. v. Rivas-Palacios, 244 F.3d 396 (5th Cir. 2001).

5th Circuit holds that felony drunk driving is not a crime of violence nor an aggravated felony. (340) The district court found that defendant’s prior Texas conviction for felony drunk driving was a crime of violence under 18 U.S.C. § 16, and thus constituted an aggravated felony under guideline § 2L1.2. See 8 U.S.C. § 1101(a)(43)(F) (defining aggravated felony to include crimes of violence under § 16). Section 16(b) defines the term crime of violence to include “any … felony … that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” The government argued that § 16(b) should be interpreted the same way some courts have interpreted crimes of violence under § 4B1.2(a)(2), the career offender guideline. Under this standard, any offense that involves “pure recklessness” is a crime of violence. See U.S. v. Rutherford, 54 F.3d 370 (7th Cir. 1995). The Fifth Circuit found that § 16(b) should be interpreted differently than guideline § 4B1.2 (a)(2), holding that § 16(b) limits crimes of violence to those offenses in which there is a substantial likelihood that the perpetrator will intentionally use force against the person or property of another. Under this definition, the crime of felony drunk driving is not a crime of violence. While the victim of a drunk driver may sustain physical injury from physical force being applied to his body as a result of a collision with the drunk driver’s car, such force has not been intentionally used against the victim. U.S. v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001).

5th Circuit holds that second deportation was not effective from date of first deportation. (340) Defendant was deported in 1997, illegally re-entered the country in 1998, and was convicted of an aggravated felony. His 1997 deportation order was reinstated pursuant to 8 U.S.C. § 1231(a)(5), and in May 1999 he was deported for the second time. Defendant argued that under § 1231(a)(5), his 1999 removal was effective in 1997, before his aggravated felony conviction, and thus he was not subject to a § 2L1.2(b)(1)(A) increase. Section 1231(a)(5) says that if the Attorney General finds that an alien has illegally re-entered the country, “the prior order of removal is reinstated from its original date … and the alien shall be removed under the prior order at any time after the reentry.” The Fifth Circuit ruled that § 1231(a)(5) does not treat an alien’s removal as effective “from its original date.” Instead, it provides that “the prior order of removal is reinstated from its original date.” It authorizes removal under the original order “at any time after the reentry.” In short, the statute plainly contemplates, after the reentry, a second removal, under the reinstated prior order. Although both removals were based on the same 1997 order, they were, nevertheless, separate removals. Because the 1999 removal was after 1998, when defendant committed an aggravated felony, he was subject to the enhanced penalty pursuant to the plain language of § 1326(b)(2) and USSG § 2L1.2(b)(1)(A). U.S. v. Nava-Perez, 242 F.3d 277 (5th Cir. 2001).

5th Circuit says aggravated felony increase did not fully take into account probation revocation sentence. (340) Guideline § 5G1.3(b) provides for concurrent sentences if “the undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense.” The district court ordered defendant’s sentence for illegally re-entering the U.S. to run consecutively to the undischarged state sentence he received for violating his probation for an aggravated felony conviction. Defendant’s illegal reentry sentence had been enhanced under § 2L1.2(b)(1)(A) because he had been deported following the aggravated felony conviction. Defendant argued that the aggravated felony had been fully taken into account in determining his offense level, and thus § 5G1.3(b) required concurrent sentences. The Fifth Circuit disagreed. The aggravated felony enhancement would have applied even if the state had chosen not to revoke the probation or if defendant had completed the sentence before the INS discovered him. Thus, § 5G1.3(b) did not apply. Rather, Note 6 to § 5G1.3(c) was applicable. Note 6 provides that if the defendant was on probation at the time of the instant offense, and such probation was revoked, the sentence for the current offense should be consecutive to the probation revocation sentence. See U.S. v. Alexander, 100 F.3d 24 (5th Cir. 1996) (Note 6 mandates consecutive sentences, and represents the Commission’s determination as to what is a “reasonable incremental punishment”). U.S. v. Reyes-Lugo, 238 F.3d 305 (5th Cir. 2001).

5th Circuit holds that status as deportable alien, where element of offense, not grounds for departure. (340) Defendant was convicted of being an alien unlawfully found in the country following deportation, in violation of 8 U.S.C. § 1326(b). He requested a downward departure based on his status as a deportable alien, citing cases in other districts and Koon v. United States, 518 U.S. 81 (1996), which held that federal courts can no longer categorically proscribe a basis for departure unless the guidelines have explicitly forbidden consideration of that factor. The Fifth Circuit found that the cases cited by defendant were clearly distinguishable from the current case, because here, defendant’s status as a deportable alien was an inherent element of his crime. Alienage is an impermissible basis for departure where a defendant’s status as a deportable alien has necessarily been taken into account by the Sentencing Commission in establishing the offense level for the crime. U.S. v. Garay, 235 F.3d 230 (5th Cir. 2000).

5th Circuit holds that check kiting conspiracy was aggravated felony. (340) Defendant illegally reentered the country. The court applied a 16-level increase under § 2L1.2(b)(1)(A) because his deportation occurred after he was convicted of an “aggravated felony,” a 1981 check kiting conspiracy in violation of 18 U.S.C. §§ 1014 and 2113(b). “Aggravated felony” is defined in 8 U.S.C. § 1101(a)(43) to include theft and burglary offenses which carry a term of imprisonment of at least one year. Black’s Law Dictionary defines theft as “the act of stealing.” Defendant’s conviction under § 2113(b), for which he was sentenced to four years’ imprisonment, involved the taking of another’s property. Since defendant’s previous conviction fit within the definition of a theft offense, and his sentence was for more than one year, the Fifth Circuit ruled that the district court correctly applied the aggravated felony enhancement to defendant. U.S. v. Dabeit, 231 F.3d 979 (5th Cir. 2000), abrogated on other grounds, U.S. v. Reyna, 358 F.3d 344 (5th Cir. 2004).

5th Circuit reaffirms that aggravated felony not an element of the offense. (340) Defendant pled guilty to illegally reentering the country after deportation, in violation of 8 U.S.C. § 1326. He received an enhanced sentence because the deportation followed his conviction for an aggravated felony. See USSG § 2L1.2(b)(1)(A). At his guilty plea hearing, he was not informed that the “aggravated felony” provision of 8 U.S.C. § 1326(b)(2) was an essential element of his offense. Although this was consistent with the Supreme Court holding in Almendarez-Torres v. United States, 523 U.S. 224 (1998), defendant wished to preserve the issue for further review based on a good-faith belief that the decision would soon be overturned. The Fifth Circuit found this argument without merit, given that in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 2362-63 (2000), the Supreme Court declined to overrule Almendarez-Torres. Since the Supreme Court has unequivocally spoken on this issue, there was no error in failing to inform defendant that the aggravated felony provision was an essential element of his sentencing. U.S. v. Dabeit, 231 F.3d 979 (5th Cir. 2000), abrogated on other grounds, U.S. v. Reyna, 358 F.3d 344 (5th Cir. 2004).

5th Circuit holds that sexual indecency with a child by exposure is aggravated felony. (340) The district court found defendant had been deported following conviction for an aggravated felony, and enhanced his sentence under § 2L1.2(b)(1)(A). The court relied on two 1990 Texas convictions for indecency with a child, which convictions were based on a single episode when he exposed himself in public and masturbated in front of two minors. The commentary to § 2L1.2 defines the term “aggravated felony” by referencing 8 U.S.C. § 1101(a)(43). Section 1101(a)(43) lists “sexual abuse of a child” as an aggravated felony. The Fifth Circuit held that indecency with a child by exposure under Texas law constitutes “sexual abuse of a child,” and thus is an aggravated felony. The phrase “sexual abuse” should not be limited to abuse involving physical contact. Sexual abuse involving fleeting physical contact can be less severe than other sexual abuse not involving physical contact. The act is “abusive” because of the psychological harm inflicted, regardless of the presence of physical injury. Moreover, Congress likely intended that the phrase “sexual abuse of a minor” in § 1101(a)(43) be given a broad definition, given that it did not reference other provisions of the U.S. Code to define the term, and did not require a minimum sentence length. U.S. v. Zavala-Sustaita, 214 F.3d 601 (5th Cir. 2000).

5th Circuit holds that misdemeanor driving while intoxicated is crime of violence. (340) Defendant pled guilty to illegal reentry by a deported alien. He had been deported after being convicted three times of misdemeanor driving while intoxicated. The district court applied a four-level increase under § 2L1.2(b)(1)(B) because he had previously been convicted of three misdemeanor crimes of violence. The Fifth Circuit agreed that drunk driving creates a serious risk of physical injury to another and therefore, is a crime of violence. Note 1 to § 2L1.2 says a “crime of violence” is defined according to the provisions of § 4B1.2, and for purposes of § 2L1.2(b)(1)(B), includes offenses punishable by imprisonment for a term of one year or less. The application notes to § 4B1.2 define a crime of violence to include an offense that “by its nature, presented a serious potential risk of physical injury to another.” A court should take a categorical approach in determining whether a particular crime is violent “by its nature.” The court agreed with U.S. v. Rutherford, 54 F.3d 370 (7th Cir. 1995) that the very nature of the act of driving while intoxicated involves “a serious risk of physical injury.” U.S. v. DeSantiago-Gonzalez, 207 F.3d 261 (5th Cir. 2000).

5th Circuit holds that “term of imprisonment imposed” for aggravated felony includes suspended sentence. (340) Section 2L1.2(b) (1)(A) contains a 16-level enhancement for an alien who illegally reenters the country after being deported following conviction for an aggravated felony. Note 5 to § 2L1.2 permits a downward departure when the defendant has only a single non-violent underlying felony that resulted in a “term of imprisonment imposed” of less than one year. For his prior state drug conviction, defendant received a sentence of five years’ confinement, suspended for five years. The Fifth Circuit held that defendant’s five year suspended sentence was not a “term of imprisonment imposed” of less than one year. The phrase “term of imprisonment imposed” does not mean “term of imprisonment served.” A 1996 amendment did not show congressional intent to exclude suspended sentences, but was intended to simplify matters by reducing the number of parentheticals referring to suspended sentences. Because note 5 refers to “a term of imprisonment imposed” with respect to an offense defined by § 1101(a)(43), § 1101(a) (48)’s definition of a term of imprisonment, which includes suspended sentences, applied. U.S. v. Yanez-Huerta, 207 F.3d 746 (5th Cir. 2000).

5th Circuit bars court from looking outside indictment, plea agreement and stipulation to determine guideline. (340) Defendant pled guilty to two counts of possessing fraudulent alien registration cards, in violation of 18 U.S.C. § 1546(a). The Statutory Index in Appendix A lists two possible guidelines for a § 1546 violation: § 2L2.1 (“trafficking” in documents relating to naturalization, citizenship, or legal resident status) and § 2L2.2 (the fraudulent acquisition of such documents for one’s “own use”). The Fifth Circuit held that the district court can only look to the offense of conviction to determine which guideline section is applicable. Where the defendant has plead guilty pursuant to a plea agreement, the district court must look first at the language of the indictment, then to the language of the plea agreement, and then to the stipulation of facts contained in the factual resume supporting the plea agreement. See § 1B1.2(a). Here, the indictment, the plea agreement and the factual resume only showed that defendant possessed two fraudulent alien registration cards that featured her photograph and two different names. Without some reference in either the plea agreement or the factual resume that would constitute either a stipulation or an admission of “trafficking,” the appropriate guideline section could not be § 2L2.1 U.S. v. Principe, 203 F.3d 849 (5th Cir. 2000).

5th Circuit holds that illegal transport of aliens is an aggravated felony. (340) In 1992, defendant was deported after illegally transporting six aliens who had just entered the U.S. In 1998, defendant was convicted of illegally reentering the country after deportation. The Fifth Circuit held that defendant’s prior crime of illegally transporting aliens was an aggravated felony, thus warranting a 16-level increase under § 2L1.2(b)(1)(A). Under 8 U.S.C. § 1101(a)(43) (N), the term “aggravated felony” includes “an offense described in paragraph (1)(A) or (2) of section 1324(a) … (relating to alien smuggling).” The Fifth Circuit rejected defendant’s claim that a conviction for transporting aliens does not “relate to alien smuggling.” The parenthetical “(relating to alien smuggling)” acts only to describe, not to limit, the offenses included in the aggravated felony definition. Moreover, even if this parenthetical is limiting, transporting aliens is “related to” smuggling. Judge Politz dissented, believing that Congress did not intend for mere transportation of aliens without a corresponding act of smuggling to be an aggravated felony. U.S. v. Monjaras-Castaneda, 190 F.3d 326 (5th Cir. 1999).

5th Circuit holds that Colorado offense of criminal trespass is aggravated felony. (340) Defendant pled guilty to illegal reentry by a deported alien. The district court applied § 2L1.2(b)(1)(A) enhancement because he was deported following an aggravated felony conviction. The Fifth Circuit held that the Colorado offense of criminal trespass is a crime of violence, and thus, qualified as an aggravated felony. The act of criminal trespass, which specifically requires entering or remaining in the dwelling of another, is a crime of violence under 18 U.S.C. § 16 because it creates a substantial risk that physical force will be used against the residents in the dwelling. Indeed, previous cases have found that even when the perpetrator has illegally entered a nonresidential building, there is a “substantial risk of physical force” being used against the property of another. See U.S. v. Rodriguez-Guzman, 56 F.3d 18 (5th Cir. 1995). U.S. v. Delgado-Enriquez, 188 F.3d 592 (5th Cir. 1999).

5th Circuit holds that offense began when defendant made first of five illegal re-entries. (340) Defendant was deported three times between 1991 and 1994. In 1994, defendant was convicted of DWI charges, and was deported again. While still under a sentence of probation, defendant again illegally reentered the U.S. In April 1995, he was convicted of auto theft and sentenced to 140 days confinement. Defendant claimed that he voluntarily returned to Mexico after completing the 140-day sentence, and he remained there until November 1997, when he illegally reentered the U.S. for the fifth time. In 1998, defendant pled guilty to being found in the U.S. after deportation. The district court applied two criminal history points under § 4A1.1(d) for committing the offense while under a criminal justice sentence. The court ruled that any of the dates on which defendant illegally reentered the U.S. after deportation could be used as the start date of the offense, which continued until defendant was found by the INS in January 1998. The Fifth Circuit agreed that any of the multiple prior illegal re-entries could be used, either as part of the current offense or as relevant conduct, to support the application of § 4A1.1(d). Defendant’s naked assertion that he voluntarily left the U.S. in 1995 and did not return until November 1997 might be sufficient to create a new and independent offense. However, even if true, that conduct was insufficient to extinguish the pre-existing and continuing offense arising from prior illegal re-entries. U.S. v. Corro-Balbuena, 187 F.3d 483 (5th Cir. 1999).

5th Circuit says conviction is not aggravated felony if court ordered probation directly. (340) Defendant pled guilty to reentering the country after deportation. The district court applied a 16-level aggravated felony enhancement based on the PSR’s statement that defendant had received a sentence of “10 years probation” for a prior Texas aggravated assault conviction. When a defendant is directly sentenced to probation with no mention of suspension of a term of imprisonment, there has been no suspension of a term of imprisonment. Under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), any reference to a term of imprisonment is deemed to include the period of incarceration by a court regardless of any suspension of the imprisonment. Thus, the Fifth Circuit found that when a court does not order a period of incarceration and then suspend it, but instead imposes probation directly, the conviction is not an “aggravated felony.” In the present case, the state court judgment was not in the record. Thus, the court remanded to give the government a chance to show that the PSR’s reference to a sentence of “10 years probation” referred to a sentence of imprisonment that was suspended in favor of probation. U.S. v. Banda-Zamora, 178 F.3d 728 (5th Cir. 1999).

5th Circuit says aggravated felony definition not unconstitutionally vague despite missing word. (340) Section 2L1.2(b)(1)(A) authorizes a 16-level enhancement for unlawfully entering or remaining in the U.S. when the defendant previously was deported after a conviction for an “aggravated felony.” The commentary defines “aggravated felony” by reference to 8 U.S.C. § 1101(a)(43), which in turn defines “aggravated felony” to include “a crime of violence … for which the term of imprisonment [sic] at least one year.” The Fifth Circuit held that the missing word did not make the definition of aggravated felony unconstitutionally vague. The United States Code Annotated indicates that the missing verb is probably “is,” see 8 U.S.C.A. § 1101 at 73 (1999), and the legislative history confirms this suggestion. A missing word is not a fatal ambiguity, particularly when the word is readily deducible. U.S. v. Banda-Zamora, 178 F.3d 728 (5th Cir. 1999).

5th Circuit holds that unauthorized use of motor vehicle is crime of violence and aggravated felony. (340) Section 2L1.2(b)(2) provides for a 16-level enhancement for a deported defendant who illegally reenters the country if the deportation followed an aggravated felony. The Fifth Circuit held that unauthorized use of a motor vehicle is a crime of violence under 18 U.S.C. § 16, and therefore qualifies as an aggravated felony. Note 7 to § 2L1.2 defines “aggravated felony” as “any crime of violence … for which the term of imprisonment imposed … is at least five years.” Previous cases have held that burglary of a nonresidential structure or vehicle is a crime of violence because of the substantial probability that physical force on the person or property will occur. The risks of physical force during a burglary of a vehicle are substantially similar to the risk of force involved in operating a vehicle without the owner’s consent. The unauthorized use of a vehicle carries a substantial risk that the vehicle might be broken into, “stripped,” or vandalized, or that it might become involved in an accident. U.S. v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999).

5th Circuit holds Texas deferred adjudication is prior felony for sentence enhancement purposes. (340) Defendant pled guilty to re-entry by a deported alien. The district court applied a four-level § 2L1.2(b)(1) enhancement because his deportation occurred after a conviction for a felony. The Fifth Circuit held that defendant’s deferred adjudication upon his plea of guilty to the charge of kidnapping in Texas was a prior felony for sentence enhancement purposes. Federal law, rather than Texas law, controls this issue. In U.S. v. Stauder, 73 F.3d 56 (5th Cir. 1996), the court held that a defendant’s deferred adjudication resulting from a finding or admission of guilt could be used for calculating the base offense level under § 2K2.1. Although § 2L1.2(b)(1), unlike other guideline provisions, does not expressly direct the sentencing court to consider prior adjudications regardless of whether a prison term for the adjudication is suspended, there was no good reason to depart from the court’s previous position addressing a Texas “deferred adjudication.” U.S. v. Valdez-Valdez, 143 F.3d 196 (5th Cir. 1998).

5th Circuit remands where consecutive sentences were imposed in disregard of § 5G1.2. (340) In November 1994, defendant pled guilty to transporting six illegal aliens. While released on bond pending sentencing, he was caught transporting seven more aliens. He pled guilty to two more counts and was sentenced for all three counts at a single consolidated sentencing hearing. The district court sentenced defendant to 18 months on the original counts, and concurrent 10-month sentences on the subsequent counts. Because the court believed that a concurrent sentence would not punish defendant for his additional crimes, the court ordered the concurrent 10-month sentences to run consecutively to the 18-month sentence. The Fifth Circuit remanded because § 5G1.2(c) required concurrent sentences, and the court did state that it was departing upward. The unique factor in this case¾the lack of sanction for repeated criminal conduct ¾ arguably warranted a departure. However, a reviewing court should not imply a departure. District courts must explain their reasons for departing from the guidelines. U.S. v. Candelario-Cajero, 134 F.3d 1246 (5th Cir. 1998).

5th Circuit holds that definition of aggravated felony in § 2L1.2(b)(2) is limited to felonies listed in note 7. (340) Defendant was convicted of illegally reentering the country following deportation. He had previously been convicted in the U.S. of being an illegal alien in unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g)(5). The district court applied the 16-level aggravated felony enhancement under § 2K1.2(b)(2). The Fifth Circuit held that a § 922(g) firearm conviction is not an aggravated felony under § 2L1.2(b)(2). The definition of “aggravated felony” in § 2L1.2(b)(2) is limited to the felonies expressly listed in note 7. Although the definition in note 7 does not state that a § 922(g)(5) conviction is an aggravated felony, it refers to § 1101(a)(43) of the INA, which does expressly include § 922(g)(5) convictions as aggravated felonies. However, the “See” cite to § 1101(a)43 is not meant to incorporate the definitions contained in that section to the enhancement provision to § 2L1.2(b)(2). It is merely a reference as to the source of the enumerated aggravated felonies in note 7 to § 2L1.2(b). U.S. v. Reyna-Espinosa, 117 F.3d 826 (5th Cir. 1997).

5th Circuit holds date of illegal reentry determines definition of aggravated felony. (340) Defendants illegally reentered the U.S. after deportation. The district court applied a 16-level § 2L1.2 enhancement because the deportation followed an aggravated felony conviction. Defendants argued that because their state court felonies were committed before the effective date of amendments expanding the definition of aggravated felony, the district court erred in applying that definition to them. The Fifth Circuit found this argument foreclosed by U.S. v. Garcia-Rico, 46 F.3d 8 (5th Cir. 1995), which held that the date of illegal reentry, not the date of the underlying offense, is the relevant date for determining the definition of aggravated felony. U.S. v. Herrera-Solorzano, 114 F.3d 48 (5th Cir. 1997).

5th Circuit reverses for failure to prove prior offense was aggravated felony. (340) Defendant argued that his prior state court conviction did not qualify as an aggravated felony under § 2L1.2 because he was not sentenced to a term of imprisonment. The term aggravated felony included a crime of violence for which the term of imprisonment imposed, regardless of any suspension, was at least five years. The Texas court judgment stated that defendant was to be punished by confinement for 10 years A/P [Adult Probation]. The sentence was suspended and defendant was placed on adult probation. The Fifth Circuit remanded because it was unclear whether the state court intended to assess a term of imprisonment and suspend its imposition, or to place defendant directly on adult probation. The government failed to meet its burden to prove that the offense was an aggravated felony U.S. v. Herrera-Solorzano, 114 F.3d 48 (5th Cir. 1997).

5th Circuit holds indecency with a child involving sexual contact is a crime of violence. (340) Defendant was deported after being convicted in Texas state court of four felony offenses of indecency with a child. Section 2L1.2(b)(2) provides for an enhanced offense level if the prior offense was an aggravated felony, which is defined to include a crime of violence. The Fifth Circuit held that indecency with a child involving sexual contact, a felony under Texas law, is a crime of violence, because it entails a substantial risk that physical force may be used against the victim. When an older person attempts to sexually touch a child under the age of 14, there is always a substantial risk that physical force will be used to ensure the child’s compliance. U.S. v. Velazquez-Overa, 100 F.3d 418 (5th Cir. 1996).

5th Circuit holds state’s reclassifying crime as misdemeanor did not affect aggravated felony status. (340) Defendant was convicted of illegally reentering the U.S. after deportation. The district court applied a § 2L1.2(b)(2) enhancement for deportation following conviction of an aggravated felony, after finding that his June 1994 Texas conviction for burglary of a vehicle was an aggravated felony. In September 1994, this statute was amended to make it a misdemeanor. Nevertheless, the Fifth Circuit held that the burglary of the vehicle was still an aggravated felony. Federal law, rather than state law, controls, and note 7 defines an aggravated felony as any crime of violence for which the term of imprisonment imposed (regardless of any suspension) is at least five years. Under U.S. v. Rodriguez-Guzman, 56 F.3d 18 (5th Cir. 1995), conviction for burglary of a vehicle under the pre-1994 Texas Penal Code is a crime of violence. Defendant was sentenced to a five year probated sentence. The change in Texas law from a felony to a misdemeanor did not change the nature of the crime. U.S. v. Ramos-Garcia, 95 F.3d 369 (5th Cir. 1996).

5th Circuit holds crime of violence with sentence of 4-10 years was aggravated felony. (340) Defendant pled guilty to illegally reentering the U.S. after deportation. The district court added a 16‑level enhancement under § 2L1.2 after finding defendant had been deported following a conviction for an aggravated felony. An aggravated felony is defined under note 7 as any crime of violence for which the term of imprisonment is at least five years. Defendant received an indeterminate sentence of four to ten years for aggravated assault. The Fifth Circuit held that this came within the definition of an aggravated felony under § 2L1.2. Note 2 to § 4A1.2 states that for purposes of applying § 4A1.1(a), (b) or (c), the length of a sentence of imprisonment is the stated maximum. It is reasonable to treat a prior indeterminate sentence in the same manner for the purpose of calculating the offense level under § 2L1.2 as for the purpose of determining the criminal history category under § 4A1.1. U.S. v. Quinonez‑Terrazas, 86 F.3d 382 (5th Cir. 1996).

5th Circuit finds no distinction between “assessing” and imposing term of imprisonment. (340) Defendant illegally reentered the U.S. after deportation following his conviction in Texas state court for robbery. He argued that the robbery was not an “aggravated felony” under § 2L1.2(b) (2) because probation, rather than imprisonment was imposed. An aggravated felony includes any crime of violence for which the term of imprisonment imposed (regardless of any suspension of imprisonment) is at least five years. The district court found that the state court imposed a term of ten years imprisonment which was suspended, and therefore the crime was an aggravated felony. The Fifth Circuit agreed, finding no meaningful distinction between a Texas court’s “assessing” a term of imprisonment and “imposing” a term of imprisonment. Although Texas calls it assessing a sentence, for guideline purposes, it was imposing a term of imprisonment, which it then suspended. Defendant would have had to serve the ten year term in prison but for the probation order suspending it. U.S. v. Vasquez‑Balandran, 76 F.3d 648 (5th Cir. 1996).

5th Circuit applies § 4A1.1(d) even though defendant reentered U.S. before he began serving state sentence. (340) While serving a state sentence, defendant admitted to INS agents that he had previously been deported. He was convicted of being “found” in the U.S. after deportation, in violation of 8 U.S.C. § 1326. The district court imposed two criminal history points under § 4A1.1(d) for committing the offense of being “found” in the U.S. while under a state sentence of imprisonment. The Fifth Circuit affirmed, agreeing that defendant’s illegal reentry continued until he was found by INS agents. Defendant was “found” in the U.S. when the INS discovered his presence and defendant admitted that he had previously been deported. The date of his surreptitious reentry was irrelevant for sentencing purposes. A § 4A1.1(d) enhancement is appropriate where a continuing offense begins before the offense for which the defendant is under a criminal justice sentence. U.S. v. Santana-Castellano, 74 F.3d 593 (5th Cir. 1996).

5th Circuit holds that blank I-94 form constituted a “set of documents.” (340) Defendant was in the business of making and forging fraudulent immigration documents. Immigration agents seized from his home and office 508 blank I-94 forms, a date stamp, and a rubber stamp marked “PROCESSED FOR I-551, TEMPORARY EVIDENCE OF LAWFUL PERMANENT RESIDENCE.” The district court enhanced his offense under § 2L2.1(b)(2) for an offense involving six or more sets of documents or passports. Defendant argued that only a completed I-94, complete with photographs and stamped “Temporary I-551” constituted a “set” of documents. Possession of blank I-94’s is lawful, and government bookstores sell them to the public. The Fifth Circuit held that each blank I-94 constituted a set of documents. The operative word was “involved.” Defendant’s offense involved stamping blank forms, and he had 508 blank forms and a stamp. This was not a case in which the defendant intended to falsify a few I-94’s and just happened to have extra blank forms in his desk. Defendant was in the business of selling fraudulent forms for profit, and intended to falsify as many forms as he had customers. U.S. v. Salazar, 70 F.3d 351 (5th Cir. 1995).

5th Circuit applies definition of “aggravated felony” that existed when defendant illegally reentered country. (340) Defendant was convicted of illegally reentering the country after deportation. The district court applied the 16-level § 2L1.2(b)(2) “aggravated felony” enhancement because defendant was deported after a conviction for voluntary manslaughter. Defendant challenged the enhancement because voluntary manslaughter, at the time he committed it, was not an aggravated felony under the statute. The statute was subsequently amended to make voluntary manslaughter an aggravated felony. The Fifth Circuit held that the district court properly used the definition of aggravated felony in effect on the date defendant illegally reentered the country. The relevant offense, for ex post facto purposes, was the offense of illegally reentering the country. U.S. v. Garcia-Rico, 46 F.3d 8 (5th Cir. 1995).

5th Circuit holds that burglary of habitation is aggravated felony. (340) Defendant illegally re-entered the U.S. after being deported for a felony conviction. Defendant argued that his Texas conviction for burglary of a habitation was not an aggravated felony under § 2L1.2 (b)(2). The 5th Circuit held that burglary of a habitation is a crime of violence under 18 U.S.C. § 16, and therefore it is an aggravated felony under § 2L1.2. Cases decided under the career offender provisions of § 4B1.1 have held that burglary of a habitation under § 30.02 of the Texas Penal Code is a crime of violence. At the time these cases were decided, the term crime of violence under § 4B1.1 was defined under 18 U.S.C. 16. Note 7 to § 2L1.1 states that the definition of aggravated felony includes any crime of violence. Therefore, the cases were applicable here. U.S. v. Guadardo, 40 F.3d 102 (5th Cir. 1994).

5th Circuit uses 1985 drug conviction to enhance sentence even though not classified as aggravated felony until 1988. (340) In 1985, defendant committed a drug felony and was deported. In 1988, 8 U.S.C. § 1326 was amended to increase the sentence for a defendant who illegally reenters the U.S. after being deported following an “aggravated felony” conviction. Drug trafficking crimes were classified as aggravated felonies. In 1992, defendant attempted to illegally reenter the U.S. The 5th Circuit held that the use of defendant’s 1985 drug conviction to enhance his sentence under § 1326(b) and § 2L1.2(b)(2) did not violate the ex post facto clause. The 1st Circuit recently rejected the same argument in U.S. v. Forbes, 16 F.3d 1294 (1st Cir. 1994). Defendant was convicted of conduct that occurred after the enactment of the statute that criminalized his conduct and established the punishment for that conduct. An enhanced penalty is not a new jeopardy or an additional penalty for the earlier crime. U.S. v. Saenz-Forero, 27 F.3d 1016 (5th Cir. 1994).

5th Circuit upholds enhanced penalty despite misinformation from INS about sentence. (340) Defendant was convicted of reentering the U.S. after deportation, and received a five-year sentence. The district court enhanced his sentence because he had been convicted of an aggravated felony prior to his deportation. The 5th Circuit upheld the enhanced sentence, even though at the time he was deported, the INS incorrectly informed him that the maximum sentence he could receive for reentry was two years. In all of the cases cited by defendant, the government misled the defendant about the legality of certain conduct. Here, defendant had fair warning that reentry was a felony. Defendant’s estoppel argument failed, since the willful and knowing commission of a felony cannot be reasonable reliance on the misrepresentation. U.S. v. Perez-Torres, 15 F.3d 403 (5th Cir. 1994).

5th Circuit holds that 8 U.S.C. §1326(b)(2) is a sentence enhancement provision. (340) Defendant pled guilty to unlawfully being in the United States after previously being deported, in violation of 8 U.S.C. §1326. He argued that he pled guilty under §1326(a), which has a maximum punishment of two years, and that the district court erroneously sentenced him under §1326(b)(2), which has a maximum punishment of 15 years. The 5th Circuit found no error. After considering various factors, including the language of the statute itself, the court held that subsection (b) is not a separate criminal offense, but a sentence-enhancement provision. Judge King dissented. U.S. v. Vasquez-Olvera, 999 F.2d 943 (5th Cir. 1993)6.

5th Circuit upholds enhancement for immigration offense based on prior felonies. (340) Defendant was convicted of attempting to illegally re-enter the U.S. after having been deported. He received an enhanced sentence under 8 U.S.C. section 1326(b) based on prior felony convictions. The 5th Circuit found adequate evidence of the prior convictions, even though no certified copy of a conviction was ever introduced. Defendant admitted at trial that he had prior felony convictions. The PSR also contained information concerning defendant’s criminal history, and defendant did not raise the PSR’s reliability in the district court. The court rejected defendant’s claim that the enhancement under section 2L1.2 violated the 8th, 5th and 14th Amendments. Although the 100-month sentence might be unduly severe, it did not violate the 8th amendment since it was within the applicable guideline range. There was no 5th or 14th amendment violation. U.S. v. Cardenas-Alvarez, 987 F.2d 1129 (5th Cir. 1993).

5th Circuit affirms upward departure for extortionate immigration offense and use of firearm. (340) Defendant and her co-defendant threatened a smuggled alien with a revolver, insisting that she either pay the $400 fee or suffer forcible repatriation. They also attempted to force a 15-year old girl to work as a prostitute until she could pay her fee. When the girl ran away, they tracked her down and threatened her. At one point the co-defendant discharged the revolver in the air. Defendant’s conduct clearly fell outside the “heartland” described by section 2L1.1. The nine level departure, calculated by analogy to the extortion guideline, section 2B3.2, was reasonable. An additional five level departure based upon the use of the firearm was also reasonable. Section 5K2.0 expressly provides that if a weapon is a relevant factor in sentencing for an immigration violation, the court may depart. Section 5K2.6 notes that the discharge of a firearm might warrant a substantial sentence increase. U.S. v. Lara, 975 F.2d 1120 (5th Cir. 1992).

5th Circuit upholds application of section 2L1.2 for falsely representing citizenship to border agent. (340) While entering the United States, defendant falsely represented that he was a U.S. citizen. Six months later, he was arrested at his place of employment, and was subsequently convicted of falsely representing his citizenship to a border patrol agent in violation of 18 U.S.C. section 911. The guidelines’ Statutory Index lists two provisions as applicable to violations of 18 U.S.C. section 911: section 2F1.1 (Fraud and Deceit) and section 2L2.2 (Fraudulently Acquiring Evidence of Citizenship). The 5th Circuit upheld the district court’s application of guideline section 2L1.2 (Unlawfully Entering or Remaining in the United States). The November 1989 version of comment 13 to guideline section 2F1.1 explicitly grants the district court the discretion to look for the most applicable guideline when the Statutory Index refers the court to section 2F1.1. Section 2L1.2 aptly described defendant’s offense, even though 18 U.S.C. section 911 is not listed under section 2L1.2. U.S. v. Castaneda-Gallardo, 951 F.2d 1451 (5th Cir. 1992).

5th Circuit vacates sentence in excess of statutory maximum. (340) Defendant was convicted of three counts of violating the Hostage Taking Act and nine counts involving smuggling illegal aliens. The district court sentenced him to 168 months imprisonment on each of the 12 counts, each term to run concurrently. The 5th Circuit vacated the sentence because the statutory maximum for each of the nine counts involving illegal aliens was 60 months. The court refused to consider the government’s argument that the sentence of 168 months was permissible under guidelines sections 3D1.4 and 3D1.5, which permit consecutive sentences, because the district court did not state that it was aggregating the sentences. It stated only that the sentences were to run concurrently. U.S. v. Carrion-Caliz, 944 F.2d 220 (5th Cir. 1991).

5th Circuit reverses upward criminal history departure in alien case. (340) Defendant was convicted of various offenses related to smuggling aliens into the United States. Defendant had several previous convictions for similar offenses, and the district departed upward, finding that the guidelines did not adequately take into consideration defendant’s “criminal involvement, particularly in matters involving the same type of offense [and] the number of aliens involved in this case.” The 5th Circuit reversed, finding no reason to believe that the guidelines did not adequately consider defendant’s criminal history. All of defendant’s prior convictions of any significance were considered in calculating his criminal history score. The fact that defendant had previously been convicted of similar offenses was also considered. Although the district court’s comments also suggested that the departure was based on the large number of aliens involved, the 5th Circuit found that this was a “makeweight, or minor collateral reinforcement” for its departure, and the primary reason for the departure was defendant’s substantial criminal history. U.S. v. Martinez-Perez, 916 F.2d 1020 (5th Cir. 1990).

5th Circuit upholds upward departure where district court relied solely on presentence report. (340) Defendant pled guilty to several counts of immigration law violations, including selling seasonal agricultural applications to illegal aliens. The district court departed upward based on the probation officer’s conclusion that the defendant was “in the business” of selling false documents and the government’s contention, related in the presentence report, that “countless illegal aliens” had benefited from defendant’s illegal activities, “severely compromising” the amnesty program in Louisiana. The 5th Circuit, relying on 18 U.S.C. 3661 and § 1B1.4 of the guidelines, held that a “district court acts within its discretion in relying solely on information contained in the presentence investigation report in departing upward,” although the weight to be given to the report remains a decision of the district court. The court upheld the departure, finding that although the information presented was not comprehensive, the departure was not clearly erroneous. U.S. v. Murillo, 902 F.2d 1169 (5th Cir. 1990).

5th Circuit holds that defendant has burden of proof to show lack of profit motive for alien smuggling. (340) Defendant argued that the district court erred when it placed the burden of proof on him to show the lack of any profit motive. The 5th Circuit found no error stating that: “As to mitigating or sentence-reducing factors, the defendant bears the burden of proof. The sentence was affirmed. U.S. v. Cuellar-Flores, 891 F.2d 92 (5th Cir. 1989), superseded by statute on other grounds as stated in U.S. v. Michael, 894 F.2d 1457 (5th Cir. 1990).

5th Circuit rules large number of aliens smuggled is proper ground for departure. (340) The 5th Circuit affirmed a departure from the guideline range for alien smuggling on the ground that Application Note 8 to § 2L1.1 expressly recognizes that a large number of aliens is a proper ground for departure. U.S. v. Lopez-Escobar, 884 F.2d 170 (5th Cir. 1989).

5th Circuit rules defendant’s status as illegal alien is not proper grounds for departure when it is already considered in base offense level. (340) Defendant pled guilty to falsely representing himself as a U.S. citizen. His adjusted offense level was calculated at 8 and his criminal history was level IV, resulting in an appropriate range of 10-16 months. The district court departed upward and imposed the three year maximum sentence. The 5th Circuit vacated the sentence, holding that the stated grounds for the departure, his illegal status and cavalier attitude toward the requirements of U.S. citizenship were already considered as part of the offense of conviction. The district court should have considered a two point offense level adjustment under § 262.2(a) because the defendant had previously been deported. U.S. v. Rios, 876 F.2d 24 (5th Cir. 1989).

5th Circuit holds departure which resulted in sentence 2.5 times the range was reasonable. (340) The 5th Circuit held that the “mere fact that a departure sentence exceeds by several times the maximum [range] is of no independent consequence in determining whether the sentence was reasonable.” Because the record contained sufficient findings to justify departure, the fact that the actual sentence was 2.5 times the guideline maximum was of no significance. The sentence imposed for alien smuggling was reasonable. U.S. v. Lopez, 875 F.2d 1124 (5th Cir. 1989).

5th Circuit holds defendant’s reckless driving, causing death and injury, was proper grounds for departure. (340) Defendant pled guilty to transporting illegal aliens. The district court made an upward departure from the appropriate range of 4-10 months and imposed a three year sentence. On appeal, the 5th Circuit affirmed the departure as proper on the grounds that the defendant’s reckless driving while attempting to escape had resulted in the death of one alien (§ 5K1.1) and required hospitalization of five others (§ 5K1.2). The sentence was reasonable given the extent of injury caused and the degree of the defendant’s culpability. U.S. v. Salazar-Villarreal, 872 F.2d 121 (5th Cir. 1989).

5th Circuit holds increase in immigration offense level for “prior conviction for related offense” was proper. (340) Defendant pled guilty to aiding and abetting the transportation of illegal aliens. He claimed that the district court erroneously increased his offense level because of a prior conviction. Based on information in the presentence report, the district court impliedly found that the defendant had previously aided and abetted transporting illegal aliens. The 5th Circuit held that this finding was not clearly erroneous, and was properly used to increase the defendant’s offense level due to “a prior conviction for a related offense” under guideline § 2L1.1. According to the commentary to § 2L1.1(b)(2), aiding and abetting the illegal entry of another is a related offense to smuggling, transporting or harboring an unlawful alien. U.S. v. Reyes-Ruiz, 868 F.2d 698 (5th Cir. 1989), overruled on other grounds by U.S. v. Bachynsky, 934 F.2d 1349 (5th Cir. 1991).

6th Circuit holds that offering to sell a controlled substance is a controlled substance offense. (340) Defendant pled guilty to being a felon in possession of a firearm. The district court applied a four-level enhancement under § 2K2.1(a)(2) based in part on its finding that his prior conviction for trafficking in cocaine, in violation of Ohio Revised Code § 2925.03(A)(1), was a controlled substance offense. Defendant argued that the offense did not qualify because the statute allows for a conviction for a mere “offer to sell” drugs. The Sixth Circuit found no error, finding that a conviction for knowingly offering to sell a controlled substance is a controlled substance offense. Because a conviction under § 2925.03(A)(1) requires an intent to sell a controlled substance, a conviction under the statute for an offer to sell is properly considered an attempt to transfer a controlled substance, which is a “controlled substance offense” under the guidelines. U.S. v. Evans 699 F.3d 858 (6th Cir. 2012).

6th Circuit approves enhancement for offense involving over 100 documents. (340) Defendant was convicted of conspiracy to produce and traffic in fraudulent identification documents, and received a 9-level enhancement under § 2L2.1 (b)(2)(C) for 100 or more documents. Defendant argued that where a set of documents is intended for use by a single person, all such documents should be treated as a single document, and therefore, the government did not prove the existence of 100 or more documents. The Sixth Circuit found no error. An ICE agent testified that more than 450 digital document templates were retrieved from two thumb drives: approximately 200 U.S. documents and 250 foreign and state identity documents. Defendant argued that one client could have bought multiple state identification cards and foreign identification cards, so together they should count as only one document. However, he offered no case law to supportthis argument. Documents used at the same time for a single purpose should be considered one document. But a person would not likely use for a single purpose multiple state identification or foreign identification cards. Moreover, there were 250 foreign documents alone. Thus, even if a person had one state and one foreign document in a “set,” there would still be over 100 documents. U.S. v. Castilla-Lugo, 699 F.3d 454 (6th Cir. 2012).

6th Circuit holds that New Mexico aggravated assault was not categorically crime of violence. (340) Defendant’s sentence included a 16-level increase under § 2L1.2(b)(1)(A)(ii) based on his prior New Mexico conviction for aggravated assault (deadly weapon). Because aggravated assault under New Mexico law was not categorically a crime of violence, and the available Shepard documents did not reveal what version of the offense defendant committed, the Sixth Circuit remanded for resentencing. “Aggravated assault” is included in the list of enumerated offenses that qualify as crimes of violence. However, New Mexico’s definition was broader than the Model Penal Code’s definition, in that it did not require specific intent to injure or to frighten the victim. New Mexico’s definition of aggravated assault was also broader than the generic version because the underlying assault could be committed solely by using insulting language. The Shepard documents presented by the government did not establish what version of the offense defendant necessarily admitted when he pled guilty. U.S. v. Rede-Mendez, 680 F.3d 552 (6th Cir. 2012).

6th Circuit bars collateral attack on prior state convictions. (340) Defendant pled guilty to drug charges, and, based on two prior Ohio firearms convictions, was sentenced as a career offender. After sentencing, the Ohio Supreme Court held that sentences for offenders who did not receive a proper post-release control notice are void. From this, defendant argued that his prior Ohio convictions were void and could not be considered for career offender purposes. The Sixth Circuit held that defendant was raising an impermissible collateral attack. He could not challenge the validity of his prior convictions during sentencing for unrelated crimes in federal court. Although a he might be able to challenge his prior convictions through state channels for seeking post-conviction relief, he could not do that here. U.S. v. Ruvalcaba, 627 F.3d 218 (6th Cir. 2010).

6th Circuit holds that prior attempted kidnapping was crime of violence. (340) Defendant pled guilty to illegal reentry after deportation, in violation of 8 U.S.C. § 1326. The district court applied a 16-level enhancement based on its finding that defendant’s prior conviction for attempted kidnapping was a crime of violence. Although kidnapping is an enumerated offense in the definition of crime of violence, defendant argued that the Michigan statute under which he was convicted was broader than the generic kidnapping offense contemplated by the guidelines. The Sixth Circuit disagreed, and affirmed the 16-level enhancement. The generic offense of kidnapping requires unlawful confinement or restraint of the victims, plus the presence of some aggravating factor, such as circumstances that create a risk of physical harm to the victim, or movement of the victim from one place to another. The six offenses punished by Michigan’s former kidnapping statute either fall within the generic, contemporary meaning of kidnapping, or have an element involving the use of force. Thus, under the categorical approach, defendant was necessarily convicted of a crime of violence within the meaning of § 2L1.2(b)(1)(A). U.S. v. Soto-Sanchez, 623 F.3d 317 (6th Cir. 2010).

6th Circuit holds judge had authority to reduce sentence based on fast-track disparity. (340) Defendant pled guilty to unlawful reentry into the US after deportation and was sentenced to 57 months. He sought a remand for the district court to consider whether to impose a lower sentence based on the disparities created by the existence of “fast-track” early disposition programs for illegal-entry cases in other jurisdictions. Because defendant was sentenced before Kimbrough v. U.S., 552 U.S. 85 (2007), and because Kimbrough permits district court judges to impose a variance based on disagreement with the policy underlying a guideline (here, the fast-track disparity), the Sixth Circuit vacated defendant’s sentence and remanded the case for resentencing. U.S. v. Camacho-Arellano, 614 F.3d 244 (6th Cir. 2010).

6th Circuit approves upward variance for multiple drunk driving convictions and illegal re-entries. (340) Defendant pled guilty to illegal re-entry after deportation. The district court found that his advisory guideline range of 15-21 months did not “properly reflect the statutory factors,” because of defendant’s repeated reentries and his serious drinking problem, “which led him to drive and to be quite dangerous.” The court sentenced him to 36 months. The Sixth Circuit affirmed. The sentence was substantively reasonable. The court thoroughly explained its concern with defendant’s four drunk-driving convictions. Although the drunk-driving offenses luckily had not resulted in harm to persons or property, the court could properly consider the potential lethality of the crimes in assessing their gravity. Similarly, both parties agreed that defendant had been deported on at least four occasions, only to re-enter, yet only one of those unauthorized re-entries had been charged and included in his criminal history calculation. Defendant’s prior convictions and actions “bore substantially” on the current offense and related directly to several § 3553(a) factors. U.S. v. Tristan-Madrigal, 601 F.3d 629 (6th Cir. 2010).

6th Circuit finds 120-month sentence for harboring aliens was reasonable. (340) Defendant ran a business that employed hundreds of illegal aliens. Defendant paid the aliens in cash and failed to withhold or pay federal income or unemployment taxes, social security, or Medicare. The defendant’s conduct resulted in $16 million in unpaid taxes. While defendant and the government were negotiating a plea agreement, defendant tried to move his assets out of the U.S. and to flee the country. Defendant pleaded guilty to charges of harboring illegal aliens that carried a maximum sentence of 120 month. The district court imposed a 120-month sentence, which was within the guideline range. The Sixth Circuit held that the sentence was reasonable. U.S. v. Rosenbaum, 585 F.3d 259 (6th Cir. 2009).

6th Circuit holds that fourth-degree burglary constituted crime of violence. (340) Ohio law defines fourth-degree burglary as trespass by force, stealth, or deception in a permanent or temporary habitation of any person when any person other than an accomplice of the offender is present. The offense did not qualify as a crime of violence under §4A1.2(a)(1) because it lacked as an element the use or threatened use of force. The offense also did not qualify as “burglary of a dwelling” because it lacked the element of intent to commit a crime within the habitation. The Sixth Circuit ruled that fourth-degree burglary qualified as a crime of violence under §4B1.2(a)(2) because it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” The Supreme Court, in James v. U.S, 550 U.S. 192 (2007), ruled that attempted burglary under Florida law presented a serious potential risk of injury to another because of the possibility of a face-to-face confrontation between the burglar and a third-party. The same risk is present with respect to Ohio’s fourth-degree burglary, even though the burglar in Ohio may not have had the intent to commit an offense within the dwelling. U.S. v. Skipper, 552 F.3d 489 (6th Cir. 2009).

6th Circuit relies on state online tracking system to confirm statutory basis of prior conviction. (340) Defendant was sentenced as a career offender based on the court’s finding that his prior Michigan assault conviction was a crime of violence. However, the PSR did not clearly define the statutory basis for the conviction (describing the offense as “Police Officer-Assault, Resist, & Obstruct”). Defendant argued that this ambiguous description did not refer to a crime of violence. However, publicly viewable criminal history records, in the Michigan Department of Corrections Offender Tracking Information System (OTIS), indicated that defendant was convicted of violating Mich. Comp. Laws Ann. §750.81d(2). This offense unambiguously defines a crime of violence because it involves an assault that causes an actual physical injury. Defendant never questioned the accuracy or reliability of his OTIS profile. Moreover, defendant’s OTIS records were consistent with the criminal history records made available by the Michigan State Police. U.S. v. Alexander, 543 F.3d 819 (6th Cir. 2008).

6th Circuit applies ACCA where state conviction was not overturned or expunged. (340) Defendant challenged the district court’s use of his 1993 Tennessee escape conviction to sentence him under the Armed Career Criminal Act, 18 U.S.C. §924(e). The conviction was based on a violation of house arrest, and defendant claimed that Tennessee no longer considered a violation of house arrest to be an escape. Three years after defendant was convicted, the highest Tennessee court held that a felon who walked away from his parole officer could not be charged with escape under the same law. Nevertheless, the Sixth Circuit ruled that even if defendant were correct, his escape conviction remained a violent felony until it was overturned or expunged. Sentencing under the ACCA is not the appropriate place to mount a collateral attack on a prior conviction. U.S. v. Goodman, 519 F.3d 310 (6th Cir. 2008).

6th Circuit reverses sentence for transporting aliens to obtain “certificates for driving.” (340) Defendant pled guilty to transporting illegal aliens from New Jersey to Tennessee for the purpose of obtaining “certificates for driving” for the aliens. The district court applied § 2L2.1, finding that defendant trafficked in documents relating to naturalization, citizenship, or legal resident status. However, at the time, Tennessee had a dual system of driver’s licenses and “certificates for driving.” The certificates were issued to illegal aliens and aliens who were not lawful permanent residents of the state, while licenses were issued only to citizens and lawful permanent residents. The certificates could not be used for identification, but they could be used for motor vehicle operation both in Tennessee and in other states. This was the intended use proffered by the aliens, who told their arresting officer that they wanted the licenses so that they could drive to their jobs in New Jersey. Because the certificates were not related to immigration or naturalization, the Sixth Circuit held that the district court erred in applying § 2L2.1 rather than § 2B1.1, the guideline applicable to generic fraud and forgery. U.S. v. Rivera, 516 F.3d 500 (6th Cir. 2008).

6th Circuit rules conviction for facilitating burglary of a business was a violent felony. (340) Defendant was convicted of being a felon in possession of a firearm. The court found that defendant’s prior conviction for facilitating burglary of a business qualified as a violent felony under the “otherwise” clause of the Armed Career Criminal Act, 18 U.S.C. 924(e), and the Sixth Circuit affirmed. Although the elements of the general Tennessee facilitation offense would not qualify as a violent felony under the ACCA, under Tennessee law, the specific underlying felony that a defendant facilitates provides the substance of the criminal conviction. The statutory definition of facilitation of a burglary of a building is clear; therefore, the court need only examine the statutory elements to decide whether the prior conviction constitutes a violent felony. Because U.S. v. Sawyers, 409 F.3d 732 (6th Cir. 2005) held that facilitation of an aggravated burglary was a violent felony, the crime here was also a violent felony. The possible presence of people is what creates a serious potential risk of physical injury to another. U.S. v. Vanhook, 510 F.3d 569 (6th Cir. 2007).

6th Circuit holds that Kentucky second-degree escape was a violent felony. (340) The district court sentenced defendant as an armed career criminal, 18 U.S.C. § 924(e), based in part on its finding that his prior Kentucky state conviction for second-degree escape was a violent felony. Defendant contended that because Kentucky’s statutes distinguish between escapes involving the use of force (first degree) and escapes not involving force (second degree), his conviction for second-degree escape should not qualify as a violent felony. Until recently, the Sixth Circuit had consistently regarded the crime of escape to be a violent felony because it involved conduct that presented a serious potential risk of physical injury to others. However, in U.S. v. Collier, 493 F.3d 731 (6th Cir. 2007), a Sixth Circuit panel ruled that a conviction under Michigan’s prison escape state was not a violent felony. The Sixth Circuit distinguished Collier on the ground that Michigan defines “escape” as a discrete act, completed when the prisoner first leaves state custody. Thus, any risk involved in apprehending the escapee is not part of the escape offense. Kentucky has no such rule, and thus the panel ruled that the district court properly treated the escape as a violent felony. U.S. v. Lancaster, 501 F.3d 673 (6th Cir. 2007).

6th Circuit upholds use of juvenile adjudication as predicate violent felony under ACCA. (340) The district court sentenced defendant under the Armed Career Criminal Act, 18 U.S.C. § 9224(e), based in part on its finding that his prior juvenile adjudication for aggravated robbery was a “violent felony.” The Sixth Circuit held that the use of the juvenile adjudication as a predicate offense under the ACCA did not violate due process or Apprendi. Congress has the power to treat prior convictions as sentencing factors subject to a lesser standard of proof because the defendant received all process that was due when convicted – for adults that includes the right to a jury trial; for juveniles, it does not. There was no indication that defendant was not given proper due process in his juvenile adjudication. U.S. v. Crowell, 493 F.3d 744 (6th Cir. 2007).

6th Circuit says defendant’s version of prior offense did not warrant below-guidelines sentence. (340) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. At sentencing, the district court found that defendant’s prior conviction for sexual abuse involving a minor was a “crime of violence” under § 2L1.2(b)(1)(A)(ii) and added 16 levels to his offense level. Defendant introduced evidence that the sexual conduct that led to his prior conviction was consensual, and he argued that the court should impose a sentence below the guideline range for that reason. The district court rejected that argument and instead imposed a sentence at the low end of the guideline range. Applying a presumption of reasonableness to sentences within the guideline range, the Sixth Circuit upheld the sentence, finding that the district court was under no obligation to accept defendant’s version of events or, if it did believe defendant, to impose a sentence below the guidelines range. U.S. v. Trejo-Martinez, 481 F.3d 409 (6th Cir. 2007).

6th Circuit holds that reckless drunk driving was not crime of violence. (340) Under Tennessee law, a person commits “vehicular assault” when they, as the proximate result of the their intoxication, recklessly cause serious bodily injury to another person by operation of a motor vehicle. The Sixth Circuit held that reckless vehicular assault was not a crime of violence, and reversed a 16-level enhancement under § 2L1.2 (b)(1)(A)(ii). A crime requiring only recklessness does not qualify as a crime of violence. The language defining a crime of violence “most naturally suggests a higher degree of intent than negligence or merely accidental conduct.” See Leocal v. Ashcroft, 543 U.S. 1 (2004). U.S. v. Portela, 469 F.3d 496 (6th Cir. 2006).

6th Circuit holds that use of communication facility to facilitate drug offense was “drug trafficking offense.” (340) Defendant was convicted of illegally reentering the U.S. following deportation. He received a 16-level enhancement under U.S.S.G. 2L1.2 based on his prior conviction for the unlawful use of a communication facility to facilitate a controlled substance offense, in violation of 21 U.S.C. § 843(b). The Sixth Circuit affirmed the 16-level enhancement, holding that the communication facility offense constituted a “drug trafficking offense” within the meaning of § 2L1.2. A § 843(b) conviction entails the government proving that the accused used a communication facility (such as a telephone) to facilitate “the commission by someone of an underlying controlled substance offense,” and that such conduct amounted to aiding and abetting the underlying offense. U.S. v. Zuñiga-Guerrero, 460 F.3d 733 (6th Cir. 2006).

6th Circuit holds that disparities between sentences in fast-track and non-fast-track jurisdictions did not make sentences unreasonable. (340) Defendant pled guilty to being in the country illegally after deportation. He argued that fast-track sentencing procedures that exist in certain districts for illegal reentry cases, which could have resulted in him receiving a four-level downward departure, should be applied in his case. He also claimed that under an advisory guidelines regime, he should be sentenced below the guidelines range in order to avoid a sentencing disparity. The Sixth Circuit disagreed. The sentencing disparity is but one factor district courts must consider in determining an appropriate sentence. Further the Attorney General and the U.S. Attorney for the districts with fast-track have determined that the departure is necessary for a particular district court to function effectively. Such a disparity does not run counter to § 3553(a)’s instruction to avoid unnecessary sentencing disparities. U.S. v. Hernandez-Fierros, 453 F.3d 309 (6th Cir. 2006).

6th Circuit agrees that court did not have authority to depart downward based on severity of crime of violence. (340) Defendant, convicted of reentering the country after deportation, received a 16-level enhancement because he had previously been convicted of attempted burglary, which is a crime of violence under § 2L1.2(b)(1)(A)(ii). Defendant argued that the enhancement significantly overstated the severity of his attempted burglary conviction, pointing out that Note 5, which limited departures to certain specific situations, was deleted by the Sentencing Commission in 2001. The district court ruled that it did not have the discretion to depart downward, and the Sixth Circuit agreed. Even though the guidelines are now advisory, Booker requires the court to determine the applicable guideline range as well as a discussion of the reasonableness of a variation from that range. When Note 5 was removed, the wording of § 2L1.2(b)(1)(A)(ii) was also changed to expressly distinguish between crimes of violence and simple aggravated felonies. Under Note 1(B)(iii) to § 2L1.2, a crime of violence includes attempted burglary of a dwelling. Therefore, the district court was required to apply the 16-level enhancement. Nonetheless, because the Sentencing Guidelines as a whole are now advisory, the district court is free to depart from the overall sentence computed under the guidelines, provided that it considers the advisory provisions of the guidelines and the other factors identified in 18 U.S.C. § 3553(a). U.S. v. Ibarra-Hernandez, 427 F.3d 332 (6th Cir. 2005).

6th Circuit says charge in indictment was insufficient to show that plea to lesser included offense was crime of violence. (340) In 1996, defendant was charged in Ohio with aggravated burglary, a first-degree felony. He pled guilty to a reduced charge of burglary, a third-degree felony. He was deported and later convicted of illegally reentered the U.S. after deportation. He challenged the district court’s finding that his state court burglary conviction constituted a “crime of violence.” The district court found that the conviction for third degree burglary was a burglary of a dwelling and therefore constituted a crime of violence. The Sixth Circuit held that because defendant did not plead guilty to, and therefore was not actually convicted of, the aggravated burglary charge contained in the indictment, the indictment alone was insufficient to meet the government’s burden of proving that defendant was previously convicted of a crime of violence. U.S. v. Bernal-Aveja, 414 F.3d 625 (6th Cir. 2005).

6th Circuit says indictment need not include previous aggravated felonies for enhancement to apply. (340) Defendant was convicted of illegally reentering the country after deportation. He argued that he could not be sentenced under 8 U.S.C. § 1326(b)(2) because the indictment charged a violation of 8 U.S.C. § 1326(a). He also claimed that his sentence could not be enhanced based on a prior conviction that was not included in the “Notice of Sentence Enhancement.” The Sixth Circuit rejected both claims. First, the law of the circuit remains as stated in Almendarez-Torres v. U.S., 523 U.S. 224 (1998) – that § 1326(b) lists sentencing factors rather than a separate crime, and therefore a § 1326(a) indictment need not list previous aggravated felonies for the defendant to be sentenced under the provisions of § 1326(b). There is no requirement that the government file a notice stating that the defendant will be subject to an enhanced sentence under § 1326(b). Moreover, while the government’s notice cited a heroin conviction, defendant had ample notice that the court would consider his second-degree assault conviction as a possible basis for enhancement. U.S. v. Perez-Olalde, 328 F.3d 222 (6th Cir. 2003).

6th Circuit holds that court made findings that defendant’s prior conviction was aggravated felony. (340) Defendant was convicted of illegally reentering the country after deportation, and received a 16-level enhancement because his deportation followed a conviction for an aggravated felony, a 1997 cocaine trafficking offense. Defendant objected to the PSR’s characterization of the offense as an aggravated felony, claiming that he did not intend to distribute the cocaine, which was for his personal use. The court heard arguments on the question, and the government noted that the 87 grams of cocaine was inconsistent with personal use. The court then heard from defendant and then announced that the only way it could reduce the sentence would be if it found the criminal history category overstated the criminal history. Based on the sentencing decision the district court made and the evidence in the record, the Sixth Circuit ruled that the sentencing court did in fact make a finding that defendant’s 1997 conviction constituted an aggravated felony. The panel further agreed that the conviction was an aggravated felony within the meaning of § 13426 because 18 U.S.C. § 924(c) together with 8 U.S.C. § 1101(a)(43)(B) explicitly so state. Finally, the panel rejected defendant’s claim that he should be sentenced under guideline § 2L1.2 as it was amended in November 2001. This guideline did not become effective until six months after he was sentenced. U.S. v. Murillo-Iniguez, 318 F.3d 709 (6th Cir. 2003).

6th Circuit says defendant must meet application note requirements for departure based on seriousness of aggravated felonies. (340) Because defendant illegally reentered the country following his conviction for an “aggravated felony,” he received a 16-level enhancement under § 2L1.2. Defendant requested a downward departure to take into account the fact that his previous felonies were not serious ones. Former application note 5 to § 2L1.2(b)(1) says that a downward departure might be warranted where: (A) the defendant had only one previous felony conviction; (B) that previous felony was not a crime of violence or a firearms offense; and (C) the term of imprisonment imposed for that felony was not more than a year. The district court found that defendant was not eligible for a downward departure because he did not meet two of the three conditions stated in Note 5. The Sixth Circuit agreed, holding that a defendant who does not qualify for a departure under Note 5 is not eligible for departure on the ground of the seriousness of the earlier felony. U.S. v. Taylor, 286 F.3d 303 (6th Cir. 2002).

6th Circuit holds that defendant waived right to challenge aggravated felony status of prior conviction. (340) Defendant was convicted of unlawfully reentering the U.S. after deportation. The government filed a notice of sentencing enhancement based upon two of defendant’s prior convictions that allegedly qualified as aggravated felonies under 8 U.S.C. § 1326. The parties then negotiated a Rule 11 agreement in which defendant stipulated to the prior aggravated felonies and a maximum sentence of 20 years’ incarceration. The PSR also considered two of defendant’s prior convictions as aggravated felonies, and counsel did not object to this characterization. Finally, defense counsel also stated in his sentencing memorandum and motion for downward departure that the offenses were classified as aggravated felonies. The Sixth Circuit held that defendant waived his right to argue on appeal that the convictions were not aggravated felonies. Waiver is the “intentional relinquishment or abandonment of a known right,” and those rights are not reviewable. An attorney cannot agree in open court with a judge’s proposed course of conduct and then charge the court with error in following that course. That is exactly the course that defendant followed in the court below. U.S. v. Aparco-Centeno, 280 F.3d 1084 (6th Cir. 2002).

6th Circuit holds that prior aggravated felonies need not be proven beyond a reasonable doubt. (340) Defendant was convicted of unlawfully reentering the U.S. after deportation. He received an enhanced sentence under 8 U.S.C. § 1326 based on his prior convictions for aggravated felonies. Except for prior convictions, “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466 (2000). The Sixth Circuit held that under Almendarez-Torres v. U.S., 523 U.S. 224 (1995), the aggravated felonies were sentencing factors not requiring this heightened burden of proof. Apprendi did not overrule Almendarez-Torres, but established an exception for prior convictions. U.S. v. Aparco-Centeno, 280 F.3d 1084 (6th Cir. 2002).

6th Circuit holds that state misdemeanor conviction for sexual abuse of minor is “aggravated felony.” (340) In 1997, defendant pled guilty to second degree sexual abuse of a minor, a misdemeanor in Kentucky. See K.R.S. § 510.120. He was deported, and later pled guilty to illegally re-entering the U.S. after deportation. The government argued that defendant’s sexual abuse conviction, although classified by the state as a misdemeanor, constituted an aggravated felony under § 2L1.2(b)(1)(A). The Sixth Circuit agreed. While the commentary defines a “felony offense” as “any federal, state, or local offense punishable by imprisonment for a term exceeding one year,” the same commentary merely references the provisions of 8 U.S.C. § 1101(a)(43) for the definition of an aggravated felony. Section 1103(a)(43)(A) lists sexual abuse of a minor as an aggravated felony without reference to any other statutory provisions or sentencing requirements. Other courts have concluded that “aggravated felony” is a term of art, “[a]lthough Congress apparently did not notice that that it might be breaking the time-honored line between felonies and misdemeanors. Congress had the power to define the punishment for the crime of re-entering the United States after deportation.” U.S. v. Christopher, 239 F.3d 1191 (11th Cir. 2001). U.S. v. Gonzales-Vela, 276 F.3d 763 (6th Cir. 2001).

6th Circuit applies guidelines in effect when defendant was found in U.S. rather than when he illegally re-entered. (340) In 1985 defendant was deported. In 1989, he illegally re-entered the U.S. In 1994, he was arrested at a U.S. airport. He pled guilty to violating 8 U.S.C. § 1326, which prohibits deported aliens from entering or being found in the U.S. without prior permission. He argued that the court should have applied the 1988 guidelines in effect when he re-entered the country rather than the 1994 guidelines, noting that the indictment to which he pled guilty referenced only the crime of “entering” the U.S. and not the crime of being found in the U.S. The Sixth Circuit held that because defendant actually pled guilty to being found in the U.S. in 1994, the 1988 guidelines were inapplicable. Although the cover sheet of the indictment only mentioned entering the U.S., the body of the indictment stated that in 1994 defendant was found in the U.S. The body of the indictment contains the actual charges, and the caption or cover sheet is not a necessary or controlling part of the indictment. U.S. v. Ebolum, 72 F.3d 35 (6th Cir. 1995).

6th Circuit rejects deportable alien status as ground for departure in alien case. (340) Defendant pled guilty to being found in the U.S. without permission after being deported. He requested a downward departure based on his status as a deportable alien, noting that this made him ineligible for certain prison programs such as halfway houses or minimum security prisons. The Sixth Circuit held that a deportable alien status is not a basis for a downward departure from a sentence imposed under a guideline primarily applicable to deportable aliens. This case was distinguishable from U.S. v. Smith, 27 F.3d 649 (D.C. Cir. 1994), which held that a downward departure may be appropriate for a deportable alien. Unlike the crime in Smith, the offense here could only be committed by deportable aliens. The court did not decide whether deportable alien status can ever be a basis for departure in sentencing for other types of crimes. U.S. v. Ebolum, 72 F.3d 35 (6th Cir. 1995).

7th Circuit says court properly declined to vary down based on credit for time in state custody. (340) Defendant was convicted of illegally being in the US after deportation. He sought a below-guidelines sentence to account for the 19 months he served in county jail after immigration officials learned of his illegal presence in this country but before he was charged. He argued that had the government charged him when immigration officials first discovered him, he would have received a sentence that ran concurrently to an unrelated state sentence. The court sentenced defendant to 90 months, within his guideline range of 77-96 months. The Seventh Circuit rejected defendant’s argument on appeal that the district court failed to adequately address his argument that he was entitled to a 19-month state sentence credit. Unlike U.S. v. Villegas–Miranda, 579 F.3d 798 (7th Cir. 2009), the district court acknowledged defendant’s argument and recognized its discretion to account for the 19 months. The court then rejected his mitigation arguments, concluding that a within-guidelines sentence was necessary to deter him from further criminal activity. U.S. v. Garcia-Segura, 717 F.3d 566 (7th Cir. 2013).

7th Circuit upholds finding that defendant was aware of scope of false documents conspiracy. (340) Defendant was involved in a high-volume false document conspiracy. The district court applied a nine-level enhancement under § 2L2.1 (b)(2) for an offense involving more than 100 documents. Defendant argued he was only accountable for 6-24 documents because he was not aware of the scope of the conspiracy and it was not reasonably foreseeable to him that 100 or more documents were involved. The Seventh Circuit held that the district court did not clearly err in determining that defendant agreed to jointly undertake most, if not all, of the conspiracy’s criminal activity for the time he was involved in it. In finding defendant was aware of the scope of the scheme, the district court relied on the specific activities defendant admitted to being involved in and the people he acknowledged conspiring with. Defendant was fully committed to the conspiracy’s objectives. He transported customers, delivered false documents, collected payments, and, perhaps most important, facilitated the conspiracy’s continued existence by retrieving false documents for reuse. And he did this knowing that at least three others were also involved in the same scheme. U.S. v. Zhaofa Wang, 707 F.3d 911 (7th Cir. 2013).

7th Circuit finds government was not estopped from opposing fast-track departure. (340) Defendant pled guilty to illegally reentering the U.S. after deportation, and was sentenced to 48 months. He argued in the district court that he should receive a below-guideline sentence because the Northern District of Illinois did not have a “fast-track” program. In U.S. v. Ramirez, 675 F.3d 634 (7th Cir. 2011), decided after defendant was sentenced, the court held that a district court may, but is not required to consider a fast-track departure. The Seventh Circuit held that the government was not estopped from opposing defendant’s request for a departure based on the absence of a fast-track program. Defendant showed no affirmative prosecutorial misconduct. In response to defendant’s first request for a fast-track plea agreement, the prosecutor’s simply pointed out that the Northern District of Illinois had no such program, but that Seventh Circuit case law allowed the defendant seek a departure at sentencing. There was nothing deceptive about this response. The prosecution did not mislead the defendant or his counsel and did not secure any unfair advantage. The prosecutor’s email was an accurate and concise explanation of the law at the time. U.S. v. Anaya-Aguirre, 704 F.3d 514 (7th Cir. 2013).

7th Circuit says definition of “substantive offense” does not apply when § 2X1.1 is applied by cross-reference. (340) While on bond, defendant stole his ex-brother-in-law’s identity, obtained a passport in his name, and moved to Panama. He was convicted of making a false statement on a passport application. Guideline § 2L2.2(c)(1)(A) provides that if the defendant used a passport in the commission of another felony, the court should apply § 2X1.1 for that felony offense. Section § 2X1.1 directs a court to apply “the base offense level from the guideline for the substantive offense …” The district court found that defendant used his passport to commit bail jumping, and applied § 2J1.6 (Failure to Appear). Defendant argued that § 2X1.1 did not apply because at the time he was sentenced, he had not been actually convicted for failure to appear. See Application Note 2 to § 2X1.1 (defining “substantive offense” as “the offense that the defendant was convicted of soliciting, attempting, or conspiring to commit”). The Seventh Circuit held that Note 2 does not apply when § 2X1.1 is reached by cross-reference from § 2L2.2(c)(1)(A). In that situation, it is rare that a defendant will have already been convicted of soliciting, attempt, or conspiring to commit” an underlying offense at the time of sentencing. Note 2 was logically intended to be applied when § 2X1.1 is applied directly. U.S. v. Earls, 704 F.3d 466 (7th Cir. 2012).

7th Circuit approves 16-level increase based on probation revocation sentence for prior drug conviction. (340) Defendant was deported following a 1999 state conviction for selling $50 worth of cocaine. In 2001, he illegally returned to the U.S., and was convicted of illegal reentry after deportation. The district court applied a 16-level increase under § 2L1.2(b)(1)(A)(i) for a prior drug conviction with a sentence over 13 months. Defendant argued that the increase did not apply because his sentence did not exceed 13 months until his probation on the drug trafficking offense was revoked. The Seventh Circuit found that defendant ultimately received a three-year sentence for the drug trafficking offense prior to his deportation, and upheld the 16-level enhancement. Defendant’s probation was revoked in August 1999, and he was resentenced to three years of imprisonment, and was deported in May 2000. Nothing in the guidelines supported defendant’s argument that the 16-level increase should only apply when the pre-revocation sentence exceeds 13 months. The three-year term was imposed before his May 2000 deportation. U.S. v. Gonzalez-Lara, 702 F.3d 928 (7th Cir. 2012).

7th Circuit rejects cultural assimilation departure where defendant did not move to U.S. until he was adult and had lengthy criminal history. (340) Defendant was convicted of illegal reentry after deportation, and was sentenced to 66 months. On appeal, he challenged the district court’s refusal to depart downward under Note 8 to § 2L1.2, on the ground that defendant had “assimilated” to the local culture. The Seventh Circuit found that defendant was ineligible for a cultural assimilation departure because he did not move to the U.S. until he was an adult (19), and because he had been convicted eight additional times after his illegal reentry. The district court recognized that the “draw of being a responsible parent” might explain why defendant illegally reentered the U.S. in the first place, but also found that these same strong familial ties continued to create a significant risk that he would reenter the country again in the future. U.S. v. Gonzalez-Lara, 702 F.3d 928 (7th Cir. 2012).

7th Circuit bases 16-level immigration increase on definitions in effect at sentencing. (340) Defendant received a 16-level increase under § 2L1.2(b)(1)(A) for deportation after felony convictions for drug trafficking and a felony crime of violence. He argued that his 1989 convictions for drugs and attempted robbery did not constitute either a “drug trafficking offense” or a “crime of violence” under the 1989 edition of the guidelines. The Seventh Circuit affirmed the increase because the crimes qualified under the 2010 guidelines in effect at the time of defendant’s sentencing, In U.S. v. Demaree, 459 F.3d 791 (7th Cir.2006), the Seventh Circuit ruled that in light of the advisory nature of the guidelines, using the guidelines in effect on the date of sentencing does not violate the ex post facto clause. Even if Demaree were incorrect, the consequence would be to use the guidelines in effect on the date of the offense, rather than on the date of sentencing. Defendant’s reentry offense was committed in November 2009, and the guidelines in effect then would not help defendant. Moreover, the 16-level enhancement was independently supported by defendant’s 1989 conviction for armed robbery. U.S. v. Medina, 695 F.3d 702 (7th Cir. 2012).

7th Circuit approves reliance on “stale” conviction in illegal reentry case. (340) Defendant pled guilty to one count of illegal reentry after deportation. He received a 16-level enhancement under § 2L1.2(b)(1)(A) based on a 1985 drug conviction, resulting in a guideline range of 46-57 months. He was sentenced at the low-end of the range to 46 months. He argued that his 1985 conviction was stale, and overstated the seriousness of his current reentry offense. The Seventh Circuit ruled that the court sufficiently considered defendant’s arguments, and upheld the guideline sentence. The court addressed the seriousness of illegal reentry, and also discussed the defendant, including his family and ties to Colombia. All of these factors determined how much weight the court gave the 1985 conviction which was at the center of defendant’s argument for a below-guidelines sentence. The district court noted that defendant was not previously deterred by his prior federal prison sentence and as a result, only a within-guidelines sentence would meet the sentencing aims of § 3553. U.S. v. Marin-Castano, 688 F.3d 899 (7th Cir. 2012).

7th Circuit approves 16-level enhancement for prior drug trafficking offense. (340) Defendant pled guilty to illegal reentry. He argued that a 16-level enhancement for a prior crime of violence was improper because no weapon was involved. The Seventh Circuit affirmed the 16-level increase because the prior offense was a drug trafficking crime. Subsection (i) to § 2L1.2(b)(1) (A), calls for a 16-level increase for a prior drug trafficking offense for which the sentence imposed exceeded 13 months. In 2002, defendant was convicted of possession with intent to distribute marijuana worth nearly $200,000 and for this, he was sentenced to seven years in prison. This placed him directly within the parameters of § 2L1.2(b)(1)(A) and qualified him for the 16-level increase. U.S. v. Garcia-Ugarte, 688 F.3d 314 (7th Cir. 2012).

7th Circuit says court is not required to depart based on district’s lack of fast-track program. (340) Defendant pled guilty to illegal reentry. He argued that he should have received a downward departure based on the lack of a fast-track program in the district. He also contended that the district court falsely believed it could not consider the lack of a fast-track program. The Seventh Circuit rejected both arguments. The sentencing transcript indicated that the court was aware of its authority regarding fast-track considerations. The court rejected defendant’s request, noting that his violent felony conviction would likely disqualify him from fast-track treatment even in a district that had such a program. U.S. v. Garcia-Ugarte, 688 F.3d 314 (7th Cir. 2012).

7th Circuit rejects cultural assimilation departure for defendant with extensive criminal history. (340) Defendant pled guilty to being in the United States without permission after he had been deported. He was sentenced to 71 months, at the top of his advisory guideline range. He argued that he should have been given a lenient sentence because he had moved to the United States at the age of 3 and so had undergone “cultural assimilation,” i.e. he had become in a practical sense an American. However, under Note 8(C) to § 2L1.2, a departure based on cultural assimilation is proper only when “such a departure is not likely to increase the risk to the public from further crimes of the defendant.” Given defendant’s criminal record, which included both arrests and a conviction for crimes that he committed after his illegal reentry, the Seventh Circuit found no basis for a cultural-assimilation departure. U.S. v. Lopez-Hernandez, 687 F.3d 900 (7th Cir. 2012).

7th Circuit affirms enhancement despite claim that it was based on improper conviction. (340) Defendant was convicted of illegally entering the U.S. after deportation. He received a 16-point crime of violence enhancement under § 2L1.2(b) (1)(A)(ii) based on an Illinois conviction for having had sex with a 13-year old girl. The offense was classified as a felony because school records showed he was 19 at the time of the crime. Had he been under 17, it would have been a misdemeanor. Defendant’s Mexican birth certificate showed that he was only 16 when he committed the offense. The sentencing court applied the 16-level enhancement but eliminated the felony from defendant’s criminal history. The Seventh Circuit affirmed the 16-level increase. Post-Booker, judges are still required to compute the guideline range correctly, and only then, based on a weighing of the statutory factors, decide whether to impose a sentence outside the range. However, the court erred eliminating the felony from defendant’s criminal history. A federal judge has no authority to treat a state criminal conviction as invalid unless the conviction has been successfully challenged by an authorized method of collateral attack. Nonetheless, the error was harmless. There was nothing unreasonable about giving a defendant a below-guideline sentence because his guideline range had been elevated as the result of an erroneous conviction. U.S. v. Ortega-Galvan, 682 F.3d 558 (7th Cir. 2012).

7th Circuit applies Begay and Chambers retroactively to find prior convictions were not crimes of violence. (340) In 2003, defendant pled guilty to bank robbery, and was sentenced as a career offender based on two prior escape convictions. He later filed a motion under 28 U.S.C. § 2255(a) asserting that the career offender sentence was illegal in light of the Supreme Court’s decisions in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), and Chambers v. U.S., 555 U.S. 122 (2009). The district court denied the motion, ruling that Begay and Chambers did not apply retroactively to cases on collateral review. The Seventh Circuit reversed, ruling that Begay and Chambers did apply retroactively to defendant’s case. Because defendant’s career offender sentence was improper, his period of incarceration exceeded that permitted by law and constituted a miscarriage of justice. The motion was timely. Defendant filed his motion within one year of both Begay and Chambers. Narvaez v. U.S., 674 F.3d 621 (7th Cir. 2011).

7th Circuit says aggravated criminal sexual abuse of teenager was crime of violence. (340) Defendant was convicted of illegally reentering the US after deportation, and received a 16-level enhancement based on his prior Illinois conviction for aggravated criminal sexual abuse, in violation of 720 ILCS § 5/12-16(d). He argued that his conviction was not a crime of violence because he merely touched a teenager’s breast without any use or threat of physical force. The Seventh Circuit ruled that defendant’s crime constituted sexual abuse of a minor, and thus constituted a crime of violence. The Illinois statute forbids “sexual conduct” with anyone from age 13 to age 16 by a person who is at least five years older. It defines “sexual conduct” as touching the victim’s genital or breast “for the purpose of sexual gratification or arousal.” As a matter of common sense, defendant’s crime constituted sexual abuse of a minor. U.S. v. Ramirez, 675 F.3d 634 (7th Cir. 2011).

7th Circuit outlines evidentiary requirements for reduction based on fast-track disparity. (340) In this consolidated appeal, the Seventh Circuit considered what evidentiary showing a defendant charged with being found in the U.S. after deportation must make before a court is obliged to consider his request for a lower sentence to account for the absence of a fast-track program in that judicial district. The panel held that a court need not address a fast-track argument unless the defendant has shown that he is similarly situated to persons who actually would receive a benefit in a fast-track district. That means the defendant must promptly plead guilty, agree to the factual basis proffered by the government, and execute an enforceable waiver of specific rights before or during the plea colloquy. The defendant must establish that he would be eligible to receive a fast-track sentence in at least one district offering the program and submit the likely imprisonment range in that district. Unless and until the defendant meets these preconditions, his “disparity” argument is illusory and may be passed over in silence. U.S. v. Ramirez, 675 F.3d 634 (7th Cir. 2011).

7th Circuit affirms decision not to depart downward for cultural assimilation. (340) Defendant pled guilty to reentering the U.S. following deportation. He requested a sentence below the advisory sentencing range based in part on his “cultural assimilation,” as contemplated in a not-yet-effective amendment to the Guidelines. See § 2L1.2, note 8 (2010). The district court declined to adjust his sentence on this basis because the amendment was not yet in effect and it considered defendant to be a risk to the public in light of his criminal past. The Seventh Circuit held that the district court adequately explained its reasons for denying the departure. First, the court did not commit any procedural error by applying the Guidelines in effect at the time of sentencing. While it could have considered the pending amendment, it was not required to do so. Second, the court noted that the departure was authorized only if it was not likely to increase the risk to the public of further crimes of the defendant. The court reviewed defendant’s criminal history, and found this was not the case. U.S. v. Lua-Guizar, 656 F.3d 563 (7th Cir. 2011).

7th Circuit affirms refusal to depart down for lack of fast-track program. (340) Defendant pled guilty to reentering the U.S. following deportation. He requested a sentence below the advisory sentencing range to avoid an “unwarranted sentencing disparity” because he was convicted in a district without a so-called “fast-track” program. The Seventh Circuit ruled that the district court did not abuse its discretion in denying the reduction. The court recognized that it had discretion to reduce defendant’s sentence but found that the sentencing range under the guidelines was “perfectly suitable to [defendant’s] offenses and his criminal history.” This was all the court needed to say. U.S. v. Lua-Guizar, 656 F.3d 563 (7th Cir. 2011).

7th Circuit finds no plain error in considering two prior arrests that did not result in conviction. (340) Defendant pled guilty to illegal reentry by a previously deported alien after a conviction for an aggravated felony. He was given a below-Guidelines sentence, but nonetheless appealed his sentence, arguing that the court improperly considered some prior arrests that did not lead to a conviction, and refused to consider the district’s lack of a “fast-track” program. The Seventh Circuit ruled that even though the district court erred in considering two out of three of defendant’s arrests, there was no plain error. Defendant did not show that he was prejudiced, given his below-guidelines sentence, the judge’s consideration of defendant’s criminal record as a whole, and the weight the court clearly gave to his more serious drug trafficking conviction. The judge made it sufficiently clear that even if defendant had only one driving under the influence arrest, he would not have further reduced defendant’s sentence in light of defendant’s drug trafficking conviction. The judge did not err with regard to the fast-track disparity issue. Although a court may consider such a disparity, it is not required to do so. U.S. v. Guajardo-Martinez, 635 F.3d 1056 (7th Cir. 2011).

7th Circuit bases seriousness of prior conviction under § 2L1.2 on sentence imposed before deportation and reentry. (340) In 2004, defendant was convicted of drug trafficking in state court and sentenced to 180 days in jail and 48 months of probation. In 2006, he was deported, and in 2009, he was discovered in the U.S. While in federal custody, the state court revoked defendant’s probation, and sentenced him to three years in prison. Defendant then pled guilty in federal court to illegal reentry after deportation. The district court applied a 16-level enhancement under § 2L2.1 for a prior conviction for an aggravated felony. Defendant argued that only the 12-level enhancement should apply, based on the 2004 sentence he received originally before he was deported and reentered the U.S. The Seventh Circuit agreed that the seriousness of the earlier conviction should be measured, for guideline purposes, based on the sentence imposed before defendant’s deportation and illegal reentry. Section 2L2.1 requires that a defendant’s sentence of over 13 months be imposed before the defendant’s deportation. The panel thus disagreed with the Second Circuit’s holding in U.S. v. Compres-Paulino, 393 F.3d 116 (2d Cir. 2004), that the 16-level enhancement applies regardless of the timing of the defendant’s deportation and revocation of probation. U.S. v. Lopez, 634 F.3d 948 (7th Cir. 2011).

7th Circuit affirms above-guideline sentence for illegal reentry defendant. (340) Defendant pled guilty to unlawful entry into the U.S. following deportation, and was sentenced to 34 months in prison, more than twice the high end of the recommended 10-16 month guideline range. The Seventh Circuit held that the district court adequately supported the above-guideline sentence. Defendant had a history of unlawfully entering the U.S. and committing crimes while here. However, the court relied on more than defendant’s extensive criminal history. It commented upon his personal characteristics, including his search for a better life, his family’s residing in the United States, and the particular need to deter him from further reentry. By considering the other circumstances drawing defendant to the United States, along with the need to deter him from reentry and crime, the court adequately justified its above-guideline sentence. U.S. v. Perez-Molina, 627 F.3d 1049 (7th Cir. 2010).

7th Circuit allows non-fast-track court to consider disparities created by fast-track programs. (340) Both defendants pled guilty to illegally reentering the United States after deportation. In both cases, the district court refused to even consider imposing below-guidelines sentences, rejecting the argument that the court should vary based on the sentences of similarly situated individuals in “fast-track” districts. In a consolidated review, the Seventh Circuit abrogated its prior opinion in U.S. v. Galicia-Cardenas, 443 F.3d 553 (7th Cir. 2006), abrogated by U.S. v. Reyes-Hernandez, 624 F.3d 405 (7th Cir. 2010), and held that a non-fast-track district court may consider sentencing disparities created by fast-track programs. The circuits are divided on this question, with the First, Third and Sixth Circuits holding that after Kimbrough, consideration of fast-track sentencing disparity is not categorically barred as a sentencing factor. The Fifth, Ninth and Eleventh Circuits have ruled that Kimbrough did not overturn previous decisions holding that a sentencing court may not consider such disparities. The panel here sided with the First, Third and Sixth Circuits, holding that § 5K3.1 should be treated as any other guideline, thereby affording district court judges the ability to consider the absence of a fast-track program in crafting an individual sentence. U.S. v. Reyes-Hernandez, 624 F.3d 405 (7th Cir. 2010).

7th Circuit relies on PSR’s summary of indictment to determine that prior conviction was crime of violence. (340) Defendant received a 16-level enhancement based on the district court’s finding that his prior Illinois conviction for aggravated battery was a crime of violence under § 2L1.2(b)(1)(A)(ii). The Illinois law criminalizes both simple battery, a misdemeanor, and aggravated battery, a felony. The district judge found that an aggravating factor was present by relying on the PSR’s summary of the two-count indictment in the battery case, and on the further statement in the report that defendant had pleaded guilty to both counts. An unsubstantiated summary of an indictment in a PSR does not satisfy the Supreme Court’s requirement of a judicial record and is not, unless its accuracy is unquestioned, a proper basis for classifying a defendant’s prior crimes. Nonetheless, the Seventh Circuit upheld the district court’s reliance on the PSR’s summary of the indictment. Defendant’s lawyer did not question the accuracy of the summary, even though she had access to the indictment. Having not objected in the district court to the summary, defendant could only prevail on appeal by showing that the district judge committed a plain error. U.S. v. Aviles-Solarzano, 623 F.3d 470 (7th Cir. 2010).

7th Circuit affirms upward variance in immigration document manufacturing case. (340) Defendant, like his co-defendant, was convicted of participating in a document forgery operation that provided false green cards and other documents to illegal immigrants. His advisory guideline range was 27-33 months. However, because he was responsible for more than 100,000 documents, the district court said that this called for a statutory maximum sentence of 60 months. Nevertheless, the court imposed a lower sentence of 48 months, due to defendant’s relatively advanced age and other factors. On appeal, defendant argued that the court placed too much weight on the number of documents. The Seventh Circuit rejected this argument, noting that defendant’s daily participation in the conspiracy lasted well over a decade and earned him more than a million dollars in illicit revenue. The court found that a sentence 15 months above the advisory guideline range was reasonable. U.S. v. Munoz, 610 F.3d 989 (7th Cir. 2010).

7th Circuit affirms upward variance based on number of immigration documents. (340) Defendant was convicted of a large document forgery operation that provided false green cards and other documents to illegal immigrants. Application Note 5 to § 2L2.1 says an upward departure may be warranted if the offense involved substantially more than 100 documents. At sentencing, the district court calculated the guideline range at 33-41 months and the government argued for a 12-level departure based on the number of documents, which would have resulted in an offense level of 32 and a guideline range of 121-151 months. Defendant argued that the number of documents should be offset by the personal characteristics of defendant and his work history. After discussing the factors in 18 U.S.C. § 3553(a), the district court imposed a 60-month term of imprisonment. On appeal, the Eighth Circuit found no error, noting that under the advisory guideline system, “departures” have been rendered obsolete. See U.S. v. Blue, 453 F.3d 948, 952 (7th Cir. 2006). The district court appropriately waited until after the guidelines range was calculated to determine whether the number of documents, combined with other factors, warranted a sentence above the advisory guideline range. Defendant conceded creating approximately 30,000 documents and received a sentence 50% more than his advisory guideline range. The Seventh Circuit ruled that the 60-month sentence was not excessive. U.S. v. Munoz, 610 F.3d 989 (7th Cir. 2010).

7th Circuit holds that Illinois conviction for aggravated battery was crime of violence. (340) Defendant was convicted of illegal reentry after deportation, and received a 16-level crime of violence enhancement under § 2L1.2(b)(1)(A)(ii) based on his prior Illinois conviction for aggravated battery. Many of his prior convictions stemmed from his abuse of alcohol, and the aggravated battery conviction stemming from an incident during his arrest for driving under the influence and leaving the scene of an accident. The Seventh Circuit held that the aggravated battery conviction qualified as a crime of violence, and upheld the 16-level enhancement. The charging document for the conviction indicated that defendant “knowingly or intentionally caused bodily harm” by kicking a Chicago police officer. Thus, defendant was convicted under the prong of the battery statute that requires the “use, attempted use, or threatened use of physical force.” U.S. v. Rodriguez-Gomez, 608 F.3d 969 (7th Cir. 2010).

7th Circuit refuses to look at residual clause where prior felony was enumerated offense. (340) Defendant pled guilty to illegal reentry after being convicted of an aggravated felony. The court imposed a 16-level crime of violence increase under § 2L1.2(b)(1)(A)(ii) based on the court’s finding that his prior conviction for burglary of a dwelling was a crime of violence. Note 1(B)(iii) says enumerated offenses such as burglary of a dwelling are “crimes of violence.” Therefore, the Seventh Circuit rejected defendant’s attempt to analyze whether the burglary offense had “as an element the use, attempted use, or threatened use of physical force against the person of another.” Because defendant’s prior offense was specifically enumerated as a crime of violence, there was no need to look at the residual clause. U.S. v. Angiano, 602 F.3d 828 (7th Cir. 2010).

7th Circuit criticizes legal challenge purporting to be appeal of court’s exercise of discretion. (340) Defendant was convicted of being illegally in the U.S. after deportation, and received a 16-level enhancement under § 2L1.2(b)(1) based on a prior conviction for a crime of violence. He argued that the enhancement was invalid because it was not based on empirical data, national experience or input from experts in the field. The Seventh Circuit rejected the argument, finding that defendant was, in essence, making a legal argument in the guise of an appeal of the court’s exercise of sentencing discretion. A sentencing judge is free to reject a guideline as inconsistent with his own penal theories, and rejecting a guideline as lacking a basis in data, experience or expertise would thus be proper. However, a judge is not required to consider an argument that a guideline is unworthy of application in any case because it was promulgated without adequate deliberation. A judge should not have to delve into the history of a guideline so that he can satisfy himself that the process that produced it was adequate. Finally, the district court was not required to explicitly address defendant’s argument that the probability that he would re-offend was slight since his family had moved to Mexico. U.S. v. Aguilar-Huerta, 576 F.3d 365 (7th Cir. 2009).

7th Circuit says harboring an alien was “another felony” committed during course of forced labor offense. (340) Defendant and her husband confiscated the passport of their live-in Filipino housekeeper, forcing her to work long hours and cutting off her contact with the outside world. She was told that if anyone discovered her, she could be arrested, imprisoned and deported, and she would not be able to send any more money back to her family. Defendant was convicted of obtaining and conspiring to obtain forced labor and harboring and conspiring to harbor an alien for private financial gain. The forced labor guideline § 2H1.4, provides for an enhanced offense level if any other felony offense was committed during the commission of the involuntary servitude offense. The Seventh Circuit held that the harboring offense was “another felony” committed during the course of the forced labor offense. There was nothing artificial about treating the forced labor and harboring as two separate offenses. They were based on different conduct, and neither necessarily encompassed the other. U.S. v. Calimlim, 538 F.3d 706 (7th Cir. 2008).

7th Circuit approves upward variance where defendant illegally reentered the country to commit crimes. (340) Defendant was convicted of illegally reentering the country after deportation. His 96-month sentence was 25 months above the high end of his advisory guideline range. Defendant argued that the sentence was unreasonable because it rested upon a clearly erroneous factual finding that defendant knew it was illegal to return to the U.S. The Seventh Circuit affirmed the above-guideline sentence, deferring to the district court’s determination regarding defendant’s lack of credibility on this issue. Further, the court did consider the evidence, namely the I-294 form that defendant presented as the alleged source of his confusion regarding the legality of his return. The panel upheld the district court’s conclusion that the I-294, when read in its entirety, made it clear to defendant that he was not allowed to return to the U.S. without permission. The court also articulated appropriate grounds for the variance. Unlike many other illegal aliens who come to the U.S. to work and support their families, defendant came to the U.S. to commit crimes and take advantage of vulnerable people. The court also believed that defendant would return to the U.S., despite his promise not to, and would again prey on vulnerable members of society. U.S. v. Gordon, 513 F.3d 659 (7th Cir. 2008) abrogated on other grounds by U.S. v. Bartlett, 567 F.3d 901 (7th Cir. 2009).

7th Circuit holds crimes committed with a mens rea of recklessness are not violent felonies. (340) Defendant was sentenced under the Armed Career Criminal Act, 18 U.S.C. §924(e), based on the court’s finding that his prior convictions for criminal recklessness with a deadly weapon and a conviction for criminal recklessness qualified as violent felonies. Defendant argued that, after the Supreme Court’s decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), a prior conviction committed with a mens rea of recklessness does not qualify as a violent felony under the ACCA. The Seventh Circuit agreed, holding that in light of Begay, the residual clause of the ACCA should be interpreted to encompass only “purposeful” crimes. Therefore, those crimes with a mens rea of negligence or recklessness do not trigger the enhanced penalties mandated by the ACCA. U.S. v. Smith, __ F.3d __ (7th Cir. Sept. 12, 2008) No. 07-1853.

7th Circuit holds that discharging firearm into vehicle was crime of violence. (340) At issue was whether defendant’s prior Illinois felony conviction for aggravated discharge of a firearm was a “crime of violence.” The Seventh Circuit found that it was, noting previous cases that held that discharging a firearm into a building that the defendant knows or should know is occupied is a crime of violence. Substitute “vehicle” for “building” and the result was essentially the same issue here—defendant fired a gun into a vehicle he knew was occupied. Discharging a firearm in the direction of another person or a vehicle one reasonably should know to be occupied carries with it “a serious potential risk of physical injury to another,” which is all that is required to constitute a crime of violence under § 4B1.2(a). U.S. v. Rice, __ F.3d __ (7th Cir. Apr. 1, 2008) No. 06-3190.

7th Circuit holds that Indiana felony offense of resisting officer was crime of violence. (340) Defendant argued that the district court erred when it concluded that his Indiana conviction for resisting a law enforcement officer was a crime of violence qualifying him as a career offender. He argued that because the Indiana statute required proof of “a substantial risk of bodily injury to another person,” see IND. CODE §35-44-3-3, instead of a “serious potential risk of physical injury,” see U.S.S.G. §4B1.2(a), the Indiana offense did not constitute a crime of violence. The Seventh Circuit disagreed and held defendant was properly sentenced as a career offender. Defendant’s semantic quibble that an offense that creates a substantial risk of injury does not equate to one that creates a serious risk of injury was just that—a semantic quibble. Defendant’s offense involved fleeing from police in a vehicle, speeding, ignoring traffic control devices, and endangering other drivers. This conduct involved the sort of purposeful and aggressive conduct required by Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008) to be a crime of violence. U.S. v. Jennings, __ F.3d __ (7th Cir. Sept. 15, 2008) No. 07-1818.

7th Circuit holds Wisconsin false imprisonment was crime of violence. (340) Defendant was convicted of drug crimes and sentenced as a career offender based in part on a prior Wisconsin felony conviction for false imprisonment. The Seventh Circuit agreed that the Wisconsin false imprisonment qualified as a crime of violence under §4B1.2(a), and thus defendant was properly sentenced as a career offender. Under James v. U.S., 127 S.Ct. (2007), the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another. Wisconsin’s false imprisonment offense, in the ordinary case, poses just such a risk. The statute can be violated four ways: (1) where the victim does not consent in fact to his confinement or restraint, (2) where the victim consents only because the perpetrator put the victim in fear by the use or threat of physical violence, (3) where the perpetrator obtains the victim’s consent by purporting to act under legal authority, and (4) the victim consents because he does not understand the nature of the thing to which he consents. The panel found that under all of these circumstances, the offense presented a serious potential risk of injury. U.S. v. Billups, 536 F.3d 574 (7th Cir. 2008) No. 07-2037.

7th Circuit remands to determine if defendant’s escape involved active and aggressive conduct. (340) Defendant was sentenced as a career offender based on four prior felonies—escape from prison (twice), failing to report to jail, and drunk driving. Under Seventh Circuit precedent, each of these offenses was a violent felony under 18 U.S.C. §924(e). However, in light of the Supreme Court’s recent decision in Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), the Seventh Circuit remanded for resentencing. Begay held that drunk driving was not a violent felony under §924(e)(2)(B)(ii), because it did not involve purposeful, violent, and aggressive conduct. Because the words of §924(e) are repeated verbatim in §4B1.2, Begay also meant that drunk driving was not a crime of violence. The panel noted that it was possible to violate the Wisconsin escape statute in a manner that constitutes a crime of violence and possible to do so in a way that was not. The record did not contain defendant’s charging records, and the panel remanded for the district court to find out whether the crimes of which defendant was convicted were jailbreaks or otherwise involved the sort of active and aggressive conduct that Begay requires. U.S. v. Templeton, 543 F.3d 378 (7th Cir. 2008).

7th Circuit rules that possession of sawed-off shotgun and domestic battery were violent felonies. (340) Defendant was sentenced under the Armed Career Criminal Act based in part on the court’s finding that his prior convictions for possessing a sawed-off shotgun and domestic battery were “violent felonies.” The Seventh Circuit affirmed, noting that it had already held that possession of a sawed-off shotgun constitutes a “crime of violence” under the Sentencing Guidelines, see U.S. v. Brazeau, 237 F.3d 842 (7th Cir. 2001), and the same conclusion applies under the ACCA. The relevant language in the Guidelines and the ACCA are identical. Defendant’s convictions for domestic battery also qualified as violent felonies. Although an offender’s first conviction under state law is a misdemeanor, if a defendant has a prior conviction for domestic battery, it becomes a Class 4 felony, punishable by one to three years’ imprisonment. Defendant had three prior domestic battery convictions, and so they constituted felonies. The offense was a violent felony because it required the state to prove “physical force.” A conviction required the state to prove that defendant caused bodily harm. U.S. v. Upton, 511 F.3d 394 (7th Cir. 2008).

7th Circuit says child abduction by putative father is not crime of violence or aggravated felony. (340) Convicted of illegally reentering the country after deportation, defendant, had a previous Illinois conviction for child abduction by a putative father, in violation of 720 Ill. Comp. Stat. 5/10-5(b)(3). The Seventh Circuit held that the offense was neither a crime of violence nor an aggravated felony under § 2L1.2(b). On the crime of violence issue, the panel rejected the government’s suggestion that child abduction by a putative father should be treated as a species of kidnapping, noting that the statute does not require confinement against the victim’s will, nor does it require force. Unlike the offense of unlawful restraint, child abduction by a putative father necessarily involves parties who stand in a familiar relationship to each other; the offense specifically targets non-forcible conduct by a putative father without regard to the victim’s resistance, consent or acquiescence. U.S. v. Franco-Fernandez, 511 F.3d 768 (7th Cir. 2008).

7th Circuit says harboring an alien was “another felony” committed during course of forced labor offense. (340) Defendant and her husband confiscated the passport of their live-in Filipino housekeeper, forcing her to work long hours and cutting off her contact with the outside world. She was told that if anyone discovered her, she could be arrested, imprisoned and deported, and she would not be able to send any more money back to her family. Defendant was convicted of obtaining and conspiring to obtain forced labor and harboring and conspiring to harbor an alien for private financial gain. The forced labor guideline §2H1.4, provides for an enhanced offense level if any other felony offense was committed during the commission of the involuntary servitude offense. The Seventh Circuit held that the harboring offense was “another felony” committed during the course of the forced labor offense. There was nothing artificial about treating the forced labor and harboring as two separate offenses. They were based on different conduct, and neither necessarily encompassed the other. U.S. v. Calimlim, 538 F.3d 706 (7th Cir. 2008).

7th Circuit treats family’s fraudulent visa applications as relevant conduct. (340) Defendant, a consular officer at the American embassy in Lithuania, was convicted of visa fraud for using his position for fraudulently facilitating the issuance of visas to certain Lithuanian citizens. The district court found that defendant’s crime involved more than six visas, and applied a § 2L2.1(b)(2)(A) enhancement for an offense involving between six and 24 documents. The parties agreed that the visas of the four co-conspirators were attributable to defendant. The Seventh Circuit affirmed the increase, finding the district court properly attributed to defendant additional visas based on evidence that he attempted to obtain visas for the family of one of his co-conspirators. The district court did not clearly err in finding by a preponderance of the evidence that defendant’s crime involved the family’s visa applications. U.S. v. Christ, 513 F.3d 762 (7th Cir. 2008).

7th Circuit finds Wisconsin robbery committed by defendant when he was 17 was a crime of violence. (340) Defendant argued that he should have been sentenced as a career offender because his prior robbery did not constitute a “crime of violence.” Also, because he was a minor at the time of the robbery, it did not meet the definition of “prior felony conviction.” The Seventh Circuit held that the robbery was properly classified as a crime of violence and defendant was properly sentenced as a career offender. The Wisconsin statute had as a necessary element the use of force against a victim. Additionally, robbery is one of the offenses specifically enumerated as being a “crime of violence” for purposes of § 4B1.2(a). Further, while defendant was 17 when he committed the robbery, the offense may be counted for career offender purposes because the robbery conviction was classified as an adult conviction in Wisconsin. See § 4B1.2(a). U.S. v. Otero, 495 F.3d 393 (7th Cir. 2007).

7th Circuit affirms that refusal to impose below-guideline sentence for cultural assimilation and lack of fast-track program. (340) Defendant pled guilty to being in the U.S. after being deported following a conviction for an aggravated felony. The district court sentenced him to 57 months, refusing to award defendant a below guideline range sentence on the basis of his cultural assimilation or the lack of a fast-track program in the North District of Illinois. The Seventh Circuit held that the court’s refusal to impose a sentence below the guideline range did not make the sentence unreasonable. The district court found no basis for any lesser harm or cultural assimilation in defendant’s background that would be sufficient to overcome his very serious criminal history. This decision was within the court’s discretion. The absence of a fast-track program did not make his sentence unreasonable. See U.S. v. Martinez-Martinez, 442 F.3d 539 (7th Cir. 2006), abrogation recognized by U.S. v. Ramirez, 652 F.3d 751 (7th Cir. 2011). U.S. v. Roche-Martinez, 467 F.3d 591 (7th Cir. 2006).

7th Circuit holds that 87-month sentence for illegal reentry offense was reasonable. (340) Defendant received an 87-month sentence for his conviction for illegally reentering the country after having been departed following a conviction for an aggravated felony. The Seventh Circuit upheld the sentence as reasonable. The sentence was at the top of the guideline range – a range that is presumptively reasonable. U.S. v. Mykytiuk, 415 F.3d 606 (7th Cir. 2005). The district court was not required to go through each of the factors listed in 18 U.S.C. § 3553(a). It was sufficient that the sentence was within the applicable guideline range and the court’s statement of reasons for choosing the high end of the range included references to several § 3553(a) factors. U.S. v. Rodriguez-Alvarez, 425 F.3d 1041 (7th Cir. 2005).

7th Circuit looks to pre-Booker law by analogy to examine reasonableness of sentence well above advisory range. (340) Defendant pled guilty to being in the U.S. after deportation. The district court imposed a sentence of 48 months, well above the upper end of his advisory guideline range of 15-21 months. To evaluate the reasonableness of the sentence, the Seventh Circuit looked to pre-Booker law by analogy. If the appeal had been decided pre-Booker, the panel would have found that the 48-month sentence was not adequately tied to the structure of the guidelines. However, under post-Booker, all that is necessary to sustain a sentence above the guideline range is “an adequate statement of the judge’s reasons consistent with § 3553(a) for thinking the sentence he has selected in indeed appropriate for the particular defendant.” The district court could not meet this standard. The court mentioned only defendant’s criminal history. However, the analogy to § 4A1.3 did not fully explain the 48-month sentence. Because the sentence was more than double the high end of the guideline range, the court’s explanation was not sufficiently compelling. U.S. v. Castro-Juarez, 425 F.3d 430 (7th Cir. 2005).

7th Circuit holds that aggravated criminal sexual abuse of minor was crime of violence. (340) Defendant, convicted of being illegally present in the U.S. after deportation, received a 16-level enhancement because the district court found that his prior conviction for aggravated criminal sexual abuse of a minor was a “crime of violence.” Note 1(B)(ii) of § 2L1.2 defines a crime of violence” as (I) … an offense … that has as an element the use, attempted use, or threatened use of physical force …; and (II) includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including sexual abuse of a minor) …..” The Seventh Circuit agreed that aggravated criminal sexual abuse constituted a crime of violence because sexual abuse of a minor is listed in subparagraph II as a crime of violence. The panel rejected defendant’s argument that the use of the word “and” between subparagraphs I and II means an offense must qualify under both parts. A crime of violence means those crimes described in subparagraph I and includes those crimes set forth in subparagraph II. Thus, a crime designated in subparagraph II clearly is a crime of violence. U.S. v. Vasquez-Abarca, 334 F.3d 587 (7th Cir. 2003).

7th Circuit holds that statutory rape was a crime of violence. (340) The application notes to the illegal reentry guideline, § 2L1.2, defines a crime of violence as “(I) an offense … that has as an element the use, attempted use, or threatened use of physical force against the person of another, and (II) includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.” Defendant contended that the use of the word “and” between subparagraphs I and II required that a conviction satisfy both subparagraphs. Thus, all crimes of violence must have an element of physical force and also be one of the enumerated offenses in subparagraph II. Because his prior conviction for statutory rape did not involve force, he argued that it was not a crime of violence. The Seventh Circuit held that it is sufficient if the prior conviction either satisfies the general criterion involving the use of force in subparagraph I, or is one of the specifically enumerated offenses in subparagraph II. Defendant’s conviction for statutory rape involved the sexual abuse of a minor, which is one of the enumerated offenses. Therefore, it constituted a crime of violence, and defendant properly received a 16-level increase for reentering the country after deportation following a conviction for a crime of violence. U.S. v. Vargas-Garnica, 332 F.3d 471 (7th Cir. 2003).

7th Circuit upholds refusal to group together two illegal reentry convictions. (340) In 1998, defendant was deported. He illegally returned to the U.S. in 1999, was convicted of burglary, and was deported in 2000. Once again, defendant reentered the U.S. and was arrested in June 2001 for driving under the influence. He was charged and pled guilty to two counts of illegal reentry of a previously deported alien. The Seventh Circuit held that the district court properly refused to group the two illegal reentry counts together under § 3D1.2. First, defendant’s offenses did not constitute a single, composite harm. Each illegal re-entry was a separate crime. Moreover, each time he re-entered the U.S., he committed a crime in addition to his illegal reentry. Second, defendant did not provide the court with any evidence that the crimes were committed as part of a common scheme or plan even though it was his burden to do so. Defendant offered no reasons for returning to the U.S., and the court was not obliged to accept counsel’s characterization of defendant’s motives at face value. U.S. v. Bahena-Guifarro, 324 F.3d 560 (7th Cir. 2003).

7th Circuit holds that offense can fall under either subsection to qualify as crime of violence under § 2L1.2. (340) The district court imposed a 16-level increase based on its finding that defendant’s Illinois felony conviction for domestic battery qualified as a “crime of violence” under § 2L1.2(b)(1)(A). Note 1(B)(ii) to § 2L1.2 defines crime of violence as (I) an offense under federal state, or local law that “has as an element the use, attempted use, or threatened use of physical force against the person of another; and (II) includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.” Defendant did not dispute that domestic battery met the first subsection of § 2L1.2’s definition of crime of violence. However, he argued that § 2L1.2’s definition requires an offense to meet the description in both subsections because the word “and,” as opposed to “or” links the two subsections. The Seventh Circuit disagreed, ruling that it is enough that an offense either falls under the general definition in the first subsection or is included among the enumerated offenses in the second subsection. The district court did not err in construing defendant’s prior conviction for domestic battery as a crime of violence. U.S. v. Alvarenga-Silva, 324 F.3d 884 (7th Cir. 2003).

7th Circuit holds that § 2L2.1 was proper guideline for possessing counterfeit immigration stamp. (340) Defendant was convicted of possessing a counterfeit U.S. immigration stamp, in violation of 18 U.S.C. § 1028(a)(5). Defendant used the stamp on an “I-94,” a form that an alien who wants to obtain a nonimmigrant visa is required to fill out. Yu had filled out such a form in Chinese and obtained a visa to come to the U.S. from China Defendant agreed to help Yu get a state identification card from the motor vehicle bureau. Had Yu’s I-94 been in English, he could have obtained the card, but it was not. Defendant took a blank I-94 form from a sheaf of such forms that he had on hand, together with stamps and other paraphernalia required to create a credible forgery, and forged an I-94 for Yu that contained the same information as Yu-’s legitimate form but was in English. The forgery was spotted when they presented the forged I-94 to the motor vehicle bureau. The Seventh Circuit held that guideline applicable to the § 1028(a)(5) offense was § 2L2.1 (trafficking in a documents relating to naturalization, citizenship, or legal resident status), rather than § 2B1.1 (forgery, offenses involving altered or counterfeit instruments). Section 2L2.1 described defendant’s conduct, whereas § 2B1.1 is applicable to forgeries generally. U.S. v. Shi, 317 F.3d 715 (7th Cir. 2003).

7th Circuit holds that defendant waived challenge to aggravated felony finding. (340) Defendant pled guilty to unlawfully entering or being found in the US after deportation. The district court found that defendant’s prior state conviction qualified as a crime of violence and thus was an aggravated felony, justifying an eight-point enhancement. When asked whether he disputed the adjusted offense level of 13, defendant, by way of counsel, voiced no objection and responded, “We do not.” The Seventh Circuit held that defendant waived his challenge to the increase. By his statement, defendant plainly communicated an intent to relinquish and abandon any argument related to his offense level calculation. Defendant could not claim ignorance of what was being waived, where he and the government submitted arguments concerning the very sentencing calculation issue for which he now sought appellate review, and the probation officer prepared a supplemental report outlining and explaining the offense level computations of which all parties and the court were aware. Moreover, even under a plain error standard of review, there were no grounds for reversal. Defendant’s prior offense involved luring or enticing a child into a vehicle for an unlawful purpose. It was not clear error to find this an aggravated felony when “such deviant conduct by its nature involves a substantial risk that in the course of such offense, force may be used against the young victim.” U.S. v. Martinez-Jimenez, 294 F.3d 921 (7th Cir. 2002).

7th Circuit examines facts in PSR to determine that burglary of a vehicle was aggravated felony. (340) The district court found that defendant’s Illinois conviction for burglary of a vehicle constituted an aggravated felony under § 2L1.2(b). The characterization of a previous conviction is to be based on the facts charged in the indictment (or, as here, the information), without a deeper inquiry into the circumstances of the offense. Deviation from this principle is justified when (1) it is impossible to otherwise determine the proper classification of the offense, and 2) the inquiry does not require a hearing to resolve contested factual issues. Here, the charging document did not resolve whether defendant’s prior conviction was a crime of violence. Moreover, the original PSR set forth the details of defendant’s 1991 crime, thinking that this was the proper approach after consultation with the Sentencing Commission Hotline. The PSR indicated that the police arrest record showed that defendant had pried open the passenger side window to gain entrance to the vehicle. The Second Circuit concluded that defendant’s acquiescence in the factual account presented in the PSR was the equivalent of a stipulation of facts. The existence of the de facto stipulation meant that no evidentiary hearing was necessary. Defendant’s act of prying open the window of a locked vehicle qualified as a use of physical force against the property of another, and thus the offense qualified as a crime of violence under 18 U.S.C. § 16(a) and was an aggravated felony. U.S. v. Alvarez-Martinez, 286 F.3d 470 (7th Cir. 2002).

7th Circuit says re-entering offense occurred while on parole and within 10 years of previous conviction, even though defendant not found until after expiration. (340) Defendant was convicted of being found in the U.S. after previously being deported following an aggravated felony conviction. He received criminal history points under §§ 4A1.1(c),(d) and 1.2(e) for committing the offense of conviction while on parole and within ten years of a previous conviction. The indictment charged him with being found in the U.S. on November 7, 2000, which was both after his parole ended and more than 10 years after the previous conviction. The district court ruled that the “found in” offense began when he reentered the U.S. illegally, which took place sometime before April 1999, a time when he was still on parole and within ten years of the previous conviction. The Seventh Circuit agreed that the “found in” offense is first committed at the time of reentry and continues to the time when the defendant is arrested for the offense. The date of discovery has no significance so far as culpability is concerned, though it may bear on the running of the statute of limitations. It would be odd to say that defendant had violated the statute when he entered but then was free of further criminal culpability until he was discovered by the INS. U.S. v. Lopez-Flores, 275 F.3d 661 (7th Cir. 2001).

7th Circuit reaffirms that defendant must meet each of listed criteria for aggravated felony departure. (340) Defendant, convicted of illegally reentering the U.S. after deportation, received a 16-level increase under § 2L1.2(a) because the deportation followed a conviction for an aggravated felony. Under Note 5 to § 2L1.2, a court may depart downward if (a) the defendant has previously been conviction of only one felony offense; (b) the offense was not a crime of violence or firearms offense, and (c) the term of imprisonment imposed for the offense did not exceed one year. The district court denied defendant’s request for a departure under Note 5 because his 1998 conviction resulted in a term of imprisonment in excess of one year. Defendant argued that the judge erred in ruling that each of the Note 5 criteria must be satisfied in order to justify a departure. The Seventh Circuit found that defendant’s argument was precluded by its recent decision in U.S. v. Palomino-Rivera, 258 F.3d 656 (7th Cir. 2001), which held that a downward departure from the 16-point enhancement is authorized only if the defendant satisfies all three criteria listed in Note 5. U.S. v. Martinez-Garcia, 268 F.3d 460 (7th Cir. 2001).

7th Circuit holds that attempt to commit theft constituted aggravated felony. (340) Defendant pled guilty in Illinois state court to burglarizing a motor vehicle. After he served his sentence he was deported, and illegally reentered the U.S. He pled guilty to being in the U.S. illegally after deportation. At sentencing, the district court found that defendant’s burglary conviction should have been classified as an “attempt” to commit a “theft offense” under the Immigration and Naturalization Act (INA), also qualifying as an “aggravated felony” under 8 U.S.C. § 1326(b)(2) and USSG § 2L1.2(b)(1)(A). The Seventh Circuit affirmed. Defendant’s 1988 burglary conviction did not fulfill the elements of a burglary offense. See Solorzano-Patlan v. INS, 207 F.3d 869 (7th Cir. 2000) (holding that burglary does not include unlawful entry into a motor vehicle). A “theft” offense under the INA requires the taking of property without the owner’s consent, with the intent to deprive the owner of the rights and benefits of ownership. Nothing indicated that defendant completed the act of taking property from the vehicle. However, the conduct admitted by defendant in his plea fit within the parameters of an attempt to commit a theft offense. The district court did not err in concluding that defendant’s conviction was an aggravated felony. U.S. v. Martinez-Garcia, 268 F.3d 460 (7th Cir. 2001).

7th Circuit says all three criteria in Note 5 needed for departure based on seriousness of aggravated felony. (340) Section 2L1.2(b)(1)(A) provides for a 16-level enhancement for defendants who illegally reenter the U.S. after being deported following the conviction of an aggravated felony. The district court ruled that defendant’s underlying felony – theft by taking – should not be treated the same as other, more serious aggravated felonies, and made an eight-level downward departure. Note 5 to § 2L1.2 authorizes a downward departure based on the seriousness of the aggravated felony if (A) the defendant has previously been convicted of only one felony offense; (B) the offense was not a crime of violence or firearms offense; and (c) the term of imprisonment imposed for such offense did not exceed one year. The Seventh Circuit held that a court may only depart downward based on the seriousness of the underlying aggravated felony if the defendant satisfied all three criteria listed in Note 5. The Sentencing Commission defined the heartland of § 2L1.2 by exclusion – if a defendant does not meet all three criteria listed in Note 5, then the case necessarily falls within the heartland of § 2L1.2. Although the government contended that defendant did not satisfy two of these three requirements, the record was unclear. On remand, the district court must make the required factual findings and only grant the departure if defendant qualifies under Note 5. U.S. v. Palomino-Rivera, 258 F.3d 656 (7th Cir. 2001).

7th Circuit refuses to overrule ban on departing in illegal re-entry case based on deportable alien status. (340) Defendant was convicted of illegally reentering the U.S. following deportation. The district court declined to grant a downward departure based on defendant’s status as a deportable alien, which would subject him to harsher conditions of confinement. See U.S. v. Gonzalez-Portillo, 121 F.3d 1122 (7th Cir. 1997) (barring departure based on deportable alien status for defendants convicted of illegal entry into the U.S. under 8 U.S.C. § 1326.) The Seventh Circuit refused to overrule Gonzalez-Portillo. The holding does not violate the mandate in Koon v. U.S., 518 U.S. 81 (1996) because it does not create a categorical ban on the use of deportable alien status for departure. Rather, it recognizes that the Sentencing Commission has already fully accounted for deportable alien status in fixing the penalty for offenses under 18 U.S.C. § 1326. U.S. v. Martinez-Carillo, 250 F.3d 1101 (7th Cir. 2001).

7th Circuit holds that criminal sexual assault was sexual abuse of minor and thus aggravated felony. (340) In 1992, defendant was convicted of criminal sexual assault in Illinois for inserting his finger into the vagina of his then 13-year old daughter. Based on the conviction, he was deported, and later convicted of illegally re-entering the country following deportation. The Seventh Circuit upheld the district court’s finding that his Illinois conviction for criminal sexual assault was one for “sexual abuse of a minor,” 8 U.S.C. § 1101(a)(43), and thus was an “aggravated felony” under USSG § 2L1.2(a). The fact that Illinois labeled his conviction as one for “sexual assault” rather than “sexual abuse of a minor” was irrelevant. Both the statute and the charging papers revealed that the victim was a minor and that defendant sexually abused the victim. U.S. v. Martinez-Carillo, 250 F.3d 1101 (7th Cir. 2001).

7th Circuit holds that father’s sexual assault on minor daughter was crime of violence. (340) Defendant received a 16-level aggravated felony enhancement based on his prior conviction for criminal sexual assault of his 13-year old daughter. Note 5 to § 2L1.2 permits a departure in certain circumstances if the aggravated felony increase overstates the seriousness of the defendant’s prior offense. This departure is not available if the aggravated felony constituted a crime of violence or a firearms offense. The Seventh Circuit held that defendant’s Illinois criminal sexual assault conviction constituted a crime of violence, and thus he was ineligible for the departure. A crime of violence includes “any offense … punishable by imprisonment for a term exceeding one year, that … presents a serious potential risk of physical injury to another.” Cases cited by defendant involved statutory rape and thus were distinguishable. Incest presents an aggravating factor that evokes a serious potential risk of physical injury. U.S. v. Martinez-Carillo, 250 F.3d 1101 (7th Cir. 2001).

7th Circuit holds that court made discretionary decision not to depart. (340) Aliens who reenter the country after deportation following conviction for an aggravated felony receive an enhanced sentence under § 2L1.2(b)(1) (A). Note 5 to § 2L1.2 permits a downward departure based on the seriousness of the aggravated felony if certain conditions are met, including that the offense was not a crime of violence. Defendant contended that the district court found him ineligible for a departure because the judge improperly concluded that his prior offense of sexual misconduct with a minor was a crime of violence. The Seventh Circuit noted that if the district court had gone behind the charging papers to conclude that defendant had committed a crime of violence, then the decision would be problematic. See U.S. v. Shannon, 110 F.3d 382 (7th Cir. 1997), abrogation recognized by U.S. v. McDonald, 592 F.3d 808 (7th Cir. 2010). If, however, the judge looked at the additional information only to determine whether it was appropriate to exercise discretion in defendant’s favor, then there was no legal impediment. Under Shannon, the judge need not stick to the charging papers when exercising such discretion with respect to departures. The panel concluded that judge did not find that defendant’s prior conviction was for a crime of violence; instead the judge exercised discretion against defendant. U.S. v. Chavez-Chavez, 213 F.3d 420 (7th Cir. 2000).

7th Circuit directs court to tie extent of depart to structure of guidelines. (340) Defendant, a legal resident of the US since the age of 2, was deported to Mexico following his conviction for the statutory rape of a minor. He later pled guilty to illegally reentering the US after deportation and received a 16-level enhancement under § 2L1.2(a) because his deportation was based on an aggravated felony conviction. At sentencing, the court discussed a letter it had received from defendant’s family, in which the family declared its intent to sell its home and return to Mexico with defendant on his deportation. Based on defendant’s extraordinary family circumstances and cultural ties to this country, the district court departed downward from a 70-87 month range to a sentence of 24 months. The Seventh Circuit ruled that the district court improperly failed to justify the extent of its downward departure. The court departed without providing any analogy to the structure of the guidelines. On remand, the court should compare the seriousness of the mitigating factors at hand with those that the Sentencing Commission contemplated. If the court find that the facts underlying defendant’s prior conviction more closely resemble a felony than an aggravated felony, then the court should analogize from the guidelines and choose the extent of its departure accordingly. U.S. v. Cruz-Guevara, 209 F.3d 644 (7th Cir. 2000).

7th Circuit says offense was “for-profit” where defendant received transportation as compensation. (340) Defendant helped another man transport illegal aliens from Arizona to Chicago. Defendant’s only compensation was the value of the trip — defendant had lined up a job in Chicago and needed transportation there. Section 2L1.1(b)(1)(A) provides for a three-level reduction where “the offense was committed other than for profit.” The Seventh Circuit held that defendant’s in-kind compensation (the transportation from Arizona to Chicago) was payment, and thus his offense was not committed “other than for profit.” Compensation is payment, and whether in specie or in some other form does not matter. Things might be otherwise if defendant did not want to be in Chicago. However, when the in-kind service is desired by the recipient, he has received some “payment” for his acts. U.S. v. Perez-Ruiz, 169 F.3d 1075 (7th Cir. 1999).

7th Circuit holds that identification documents includes uncompleted documents. (340) Defendant was arrested with 192 counterfeit resident alien cards, 24 counterfeit Social Security cards, 16 plastic laminates with the I-551 hologram for resident aliens, and 31 plastic laminates for Social Security cards. Section 2L2.1(a) provides for a nine-level enhancement if the offense involved 100 or more documents. Defendant argued that the blank papers he possessed were not “documents” because the cards had not been “completed.” The Seventh Circuit held that all of defendant’s documents, whether completed or blank, were properly considered documents under § 2L2.1. Legislative history and caselaw supports the notion that the definition of “identification documents” in 18 U.S.C. § 1028(d)(1) includes blank identification documents which have not been completed with information relating to a particular individual. The Seventh Circuit also rejected defendant’s claim that each sheet of counterfeit resident alien cards (each sheet containing 8 cards) and each sheet of counterfeit Social Security cards (each sheet containing 12 Social Security cards) was a “set” that should only count as a single document under note 2 to § 2L2.1. Multiple documents are a “set” only when they are intended for use by a single person. U.S. v. Castellanos, 165 F.3d 1129 (7th Cir. 1999).

7th Circuit says deportable alien status may justify departure if exceptional hardship. (340) Defendant, a French citizen, was arrested attempting to smuggle heroin into the U.S. The district court refused to depart downward, ruling that defendant’s status as a deportable alien was not a proper basis for departure. The Seventh Circuit remanded for the court to consider whether defendant’s status as a deportable alien had resulted in unusual or exceptional hardship in his conditions of confinement. The cases relied on by the court to deny the departure preceded Koon v. United States, 116 S.Ct. 2035 (1996). Koon allows a court to take into consideration any unusual or exceptional factors that have not been considered by the guidelines. Unlike the offense of illegally reentering the U.S. following deportation, defendant’s drug crime did not account for his deportable alien status. Therefore, the district court was free to consider whether defendant’s status has resulted in unusual or exceptional hardship in his conditions of confinement. U.S. v. Farouil, 124 F.3d 838 (7th Cir. 1997).

7th Circuit rejects departure in immigration case based on status as deportable alien. (340) Defendants were convicted of illegally reentering the U.S. after deportation. They requested downward departures based on their status as deportable aliens because it disqualified them from serving any portion of their sentences in minimum security institutions, halfway houses, community correction centers or home confinement. Also, they would face deportation upon completion of their sentences. The Seventh Circuit held that defendants’ status as deportable aliens was not a basis for departure because their crime could only be committed by a deportable alien. Therefore, it was clearly taken into consideration by the Commission in formulating § 2L1.2. This distinguished the case from U.S. v. Smith, 27 F.3d 649 (D.C. Cir. 1994), which held that the harsher conditions of confinement faced by a deportable alien might justify a departure. The defendant in Smith was convicted of drug charges, so his sentence did not already taken his deportability into account. U.S. v. Gonzalez-Portillo, 121 F.3d 1122 (7th Cir. 1997).

7th Circuit says guideline definition of “aggravated felony” did not incorporate statute’s effective date. (340) Defendants were convicted of illegally reentering the U.S. after deportation in violation of 8 U.S.C. § 1326. The district court increased the sentence by sixteen levels under guideline § 2L1.2(b)(2) for defendant’s 1986 aggravated felony conviction. Defendant argued that the increase should not apply because his 1986 offense did not qualify as an aggravated felony under the statutory definition in 8 U.S.C. § 1101(a)(43) until 1990, and the statutory definition was not retroactive. The Seventh Circuit held that the guideline enhancement applies even where the statutory enhancement is inapplicable. Although the 1991 amendment § 2L1.2 paralleled the statutory definition, it did not incorporate the statute’s effective date. The court previously rejected the same argument in U.S. v. Munoz-Cerna, 47 F.3d 207 (7th Cir. 1995), concluding that “no symmetry was intended” between the guideline definition and the statutory definition of “aggravated felony.” U.S. v. Gonzalez-Portillo, 121 F.3d 1122 (7th Cir. 1997).

7th Circuit says 16-year-old prior was aggravated felony under immigration guideline. (340) Defendant pled guilty to illegally reentering the country following deportation. The district court applied a 16-level aggravated felony enhancement under § 2L1.2(b)(2) based on a 1980 firearms conviction. Defendant argued that any aggravated felony over 15 years old is too old to be counted. The Seventh Circuit disagreed, holding that the enhancement in § 2L1.2(b)(2) is not limited to aggravated felonies less than 15 years old. The definition in note 7 only contains a 15-year limit for convictions under foreign law. There is no such limit for domestic convictions. Section 2L1.2(b) need not be consistent with the criminal history rules in Chapter Four because the sections have different goals. The aggravated felony enhancement is a measure of the seriousness of the crime, while the criminal history category evaluates the likelihood that the defendant will commit another crime in the future. U.S. v. Gonzalez, 112 F.3d 1325 (7th Cir. 1997).

7th Circuit says maximum sentence imposed, rather than time served, controls for aggravated felony purposes. (340) Defendant pled guilty to illegally reentering the U.S. after having been previously convicted of an aggravated felony. An aggravated felony is defined as a crime of violence for which a term of imprisonment of least 5 years was imposed. Defendant’s prior conviction was an attempted robbery for which he received an indeterminate sentence of 2 to 10 years. He served less than 3 years before being paroled. The Seventh Circuit held that the maximum potential sentence imposed, rather than the time actually served, was controlling for purposes of § 2L1.2(b)(2). Defendant’s 2‑10 year sentence should be counted as a 10‑year sentence under § 2L1.2(b)(2). Whether he actually served 1 year, 3 years or 5 years was irrelevant. U.S. v. Cordova‑Beraud, 90 F.3d 215 (7th Cir. 1996).

7th Circuit holds that defendant could foresee existence of 334 counterfeit documents in his home. (340) Police found 334 counterfeit alien registration and social security cards, and equipment and materials to produce counterfeit identification documents in a bedroom in defendant’s house. The district court enhanced defendant’s sentence under § 2L2.1(b)(2)(c) based on his involvement with more than 100 counterfeit documents. Defendant argued that the bedroom belonged to his cousin, and he could not have foreseen that his cousin possessed 334 counterfeit documents. The Seventh Circuit upheld the district court’s finding that defendant had an extensive role in the conspiracy so that he could have reasonably foreseen the existence of 334 counterfeit documents in his home. Police also found a note addressed to defendant placing an order for counterfeit documents. U.S. v. Marquez, 48 F.3d 243 (7th Cir. 1995).

7th Circuit says prior felony was “aggravated” under guidelines, but not under statute. (340) In 1993, defendant pled guilty to violating 8 U.S.C. 1326 for illegally reentering the U.S. after deportation following a 1987 conviction for attempted armed robbery. Until November 29, 1990, the statute did not include attempted armed robbery as an “aggravated felony” for enhancement purposes, so the statutory 15-year maximum could not be applied. However, guideline section 2L1.2(b), effective November 1991, provides for a 16-level enhancement if the deportation followed an aggravated felony, and the guidelines’ definition of “aggravated felony” includes attempted armed robbery. The Seventh Circuit held that defendant’s attempted armed robbery was an aggravated felony under § 2L1.2(b), even though it was not, an aggravated felony under § 1326(b). The Sentencing Commission did not intend a symmetrical relationship between the aggravated felony provisions of the statute and the guideline. U.S. v. Munoz-Cerna, 47 F.3d 207 (7th Cir. 1995).

7th Circuit says passport fraud and false claim of citizenship were not immigration violations. (340) Defendant illegally reentered the country after having been deported. Section 2L1.2(b)(1) provides for an enhancement where the defendant was deported after a conviction for a felony, other than a felony under the immigration laws. The Seventh Circuit held that defendant’s prior convictions for passport fraud and falsely representing himself to be a U.S. citizen were not violations of immigration laws under § 2L1.2(b)(1). The immigration laws are found in Title 8 of the United States Code, and defendant’s offenses were violations of Title 18. The definition of “immigration laws” in 8 U.S.C. § 1101(a)(17) is extremely narrow, and does not reach any criminal conduct beyond that necessarily committed in connection with the admission or exclusion of aliens. The court knew of no laws meeting that specification other than those in Title 8 itself. U.S. v. Sotelo-Carrillo, 46 F.3d 28 (7th Cir. 1995).

7th Circuit upholds longer sentence for reentering U.S. despite inaccurate notice from INS. (340) Defendants illegally reentered the U.S. following their deportation and were convicted under 8 U.S.C. § 1326. Because defendants had prior aggravated felony convictions, they received a 16-level enhancement under § 2L1.2(b)(2). Defendants argued that their increased sentences violated due process because at the time they were deported, the INS had given them a form incorrectly warning that reentry into the U.S. was punishable by only two years’ imprisonment. The form did not reflect amendments to § 1326 that increased the punishment to 15 years for deportees previously convicted of aggravated felonies. The 7th Circuit held that the statutes under which defendants were convicted provided adequate notice of the increased penalties. Defendants’ claim of estoppel also failed, since they were unable to show that they relied on the inaccurate advice. U.S. v. Samaniego-Rodriguez, 32 F.3d 242 (7th Cir. 1994).

7th Circuit upholds increased penalty for reentry after deportation. (340) Defendant reentered the United States after having been deported following a drug conviction. The nature of the prior felony enhanced defendant’s sentence under 2L1.2(b)(2), leading to a 46-month sentence. The 7th Circuit rejected claims that the enhancement violated the double jeopardy clause or due process. Although a INS form warned defendant that reentry was punishable by up to two years in prison, the increased sentence did not violate due process. Defendant was not advised that he was free to reenter the country. Defendant returned to the U.S. knowing it was a felony; he did not argue he relied on the belief that the maximum penalty was two years. U.S. v. Shaw, 26 F.3d 700 (7th Cir. 1994).

8th Circuit holds that below guideline sentence for illegal reentry was reasonable. (340) Defendant pled guilty to illegal reentry. The district court sentenced him to 36 months, ten months below his advisory guideline range. Nonetheless, defendant argued on appeal that his sentence was substantively unreasonable, contending that the court gave too much weight to the advisory guidelines—in particular, a 16-level enhancement under § 2L1.2(b). The Eighth Circuit disagreed. Although district courts are entitled to reject and vary categorically from the guidelines based on a policy disagreement, they are not required to do so. Because the court varied downward here, it was hard to say that it gave too much weight to the guidelines. The panel also rejected defendant’s claim that the court gave too little weight to his health problems and family circumstances. The district court acknowledged that defendant had significant health problems and young children in the country. The court articulated a reasoned basis for its sentence, finding defendant’s repeated violations of immigration laws and the need to deter others from similar conduct warranted a lengthy sentence. U.S. v. Gonzalez, 742 F.3d 815 (8th Cir. 2014).

8th Circuit says Nebraska sudden quarrel manslaughter was not crime of violence in 2006. (340) Defendant pled guilty illegal reentry after deportation. The district court imposed a 16-level crime of violence increase under § 2L1.2(b)(1)(A)(ii) based on defendant’s 2006 Nebraska conviction for manslaughter. The Eighth Circuit reversed, ruling that the Nebraska manslaughter offense was not a crime of violence at the time defendant committed it. Nebraska Revised Statute § 28–305 describes “the offense of killing another person without malice upon a sudden quarrel.” In 1994, the Nebraska Supreme Court ruled that this statute did not require an intent to kill. State v. Jones, 245 Neb. 821 (1994). Thus, in 2006, the Nebraska statute was broader than generic federal manslaughter. Although the Nebraska Supreme Court overruled Jones in 2011, and reinstated prior law that probably met the mens rea requirement for generic federal manslaughter, that interpretation was not Nebraska law when defendant was convicted in 2006. U.S. v. Roblero-Ramirez, 716 F.3d 1122 (8th Cir. 2013).

8th Circuit says court need not sua sponte acknowledge its discretion to vary based on lack of fast-track program. (340) Defendant pled guilty to unlawful reentry after deportation following an aggravated felony conviction, and was sentenced to 46 months. Two weeks after sentencing, the Eighth Circuit ruled that the absence of a fast-track program and the resulting difference in the guidelines range “should not be categorically excluded as a sentencing consideration.” U.S. v. Jimenez–Perez, 659 F.3d 704 (8th Cir. 2011). Based on Jimenez–Perez, defendant argued that that the district court erred by failing to recognize its authority to grant a downward variance based on the unavailability of a fast-track downward departure. The Eighth Circuit disagreed. Defendant did not move for a downward variance on this ground, did not pursue the issue at sentencing, and the district court gave no hint that it misunderstood the extent of its sentencing discretion. Defense counsel’s passing reference to a four-level departure that would be available in fast-track districts did not require the district court to acknowledge, sua sponte, that it would have discretion to take this factor into account in determining whether to grant defendant’s request for an even greater variance. U.S. v. Longarica, 699 F.3d 1010 (8th Cir. 2012).

8th Circuit approves sentence at bottom of guideline range for illegal reentry defendant. (340) Defendant was convicted of illegal reentry after removal in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2), and 6 U.S.C. §§ 202 and 557. He appealed his 77-month prison sentence as substantively unreasonable. At sentencing, defendant had urged the court to grant downward departures based on his cultural assimilation and Minnesota’s lack of a “fast-track” sentencing program. Defendant’s guideline range was 77-96 months, a high range for an illegal reentry offense, resulting mostly from his 11 prior convictions. The Eighth Circuit found no error. The district court properly considered the inadequate deterrence provided by defendant’s previous illegal reentry sentence. Given his life of crime in this country and his “contemptuous disregard for our immigration laws,” an upward departure or variance would not have been unreasonable. U.S. v. Paulino-Duarte, 670 F.3d 842 (8th Cir. 2012).

8th Circuit upholds refusal to grant further downward variance for illegal entry. (340) After illegally reentering the U.S. seven times, and having been convicted twice of illegal entry, defendant once again pleaded guilty to illegal reentry. His guideline range was 70-87 months. The district court sentenced him to 48 months, finding that defendant’s overstated criminal history and cultural ties to this country warranted a downward variance, but that “the principle of incremental punishment” warranted a “slightly longer sentence” because his prior illegal reentry sentences were 18 and 24 months, and seven prior deportations … counts for something.” The Eighth Circuit held that the district court did not abuse its discretion when it declined to grant an even greater downward variance from the recommended guideline range of 70-87 months. The court considered the mitigating factors defendant presented and articulated a reasoned basis for its sentence. It properly took into account that prior illegal reentry sentences had failed to deter; defendant’s repeated illegal reentries demonstrated “contemptuous disregard for our immigration laws.” U.S. v. Elodio-Benitez, 672 F.3d 584 (8th Cir. 2012).

8th Circuit holds municipal assault and battery convictions were misdemeanor crimes of violence. (340) Defendant illegally reentered the U.S. after deportation. He received an enhancement under § 2L1.2(b)(1)(E) based on the district court’s finding that his convictions under Omaha Municipal Code (OMC) § 20-61 constituted misdemeanor “crimes of violence.” The Eighth Circuit affirmed, finding that the charging documents made clear that defendant was convicted under OMC § 20-61(a), (b) or (c). Conviction under any of those subsections would be a conviction for a misdemeanor crime of violence. Knowingly or purposely causing or attempting to cause bodily injury or making another person fear imminent bodily harm necessarily required using, attempting to use, or threatening to use physical force. U.S. v. Salido-Rosas, 662 F.3d 1254 (8th Cir. 2011).

8th Circuit says court in non-fast track district may consider disparities created by fast track programs. (340) Defendant pled guilty to illegal reentry into the U.S. after being deported, in violation of 8 U.S.C. § 1326(a). He moved for a downward departure to compensate for the sentencing disparity based on the unavailability of a “fast track” early disposition program in the district. Previous Eighth Circuit cases have concluded that variances based on the absence of fast track programs were impermissible. Here, the Eighth Circuit held that Kimbrough v. U.S, 552 U.S. 85 (2007), undermined the rationale of its prior decisions that disallowed variances based on the unavailability of fast track in a particular district. The focus is not on whether Congress, through the PROTECT Act, blessed a sentencing disparity, making it warranted and thereby consistent with 18 U.S.C. § 33553(a)(6). Rather, the question was whether Congress, through the PROTECT Act, expressly curtailed a district court’s sentencing discretion under the entire array of § 3553(a). Congress did not. Nowhere in the PROTECT Act does Congress purport to limit a district court’s sentencing discretion under all the § 3553(a) factors. U.S. v. Jimenez-Perez, 659 F.3d 704 (8th Cir. 2011).

8th Circuit relies on California “Report-Indeterminate Sentence” in applying modified categorical approach. (340) Defendant pled guilty to illegal reentry into the U.S. after deportation, and received a 12-level enhancement under § 2L1.2(b)(1)(B) for a prior “felony drug trafficking offense for which the sentence imposed was 13 months or less.” Defendant argued that the statute, California Health & Safety Code § 11351, was over-inclusive because it prohibits the sale of some substances that are not “controlled substances” under the federal Controlled Substances Act. The Eighth Circuit affirmed the enhancement, finding that even if § 11351 was not categorically a drug trafficking felony, this particular conviction qualified as a “drug trafficking offense” under the Supreme Court’s modified categorical approach. The “Report-Indeterminate Sentence,” produced by the government, stated that defendant pled guilty to possessing heroin for sale. This was the type of reliable and accurate judicial record on which a court may rely. It is an official court document prepared and signed by a deputy clerk of the court. The state court was required to complete the report pursuant to California law. The document was filed by the state court, and defendant could have examined it and urged the state court to correct any inaccuracies. The fact that the report did not indicate the type of plea entered was irrelevant. The enhancement depends on a conviction for a felony drug trafficking offense, not an explicit admission of guilt. U.S. v. Benitez-De Los Santos, 650 F.3d 1157 (8th Cir. 2011).

8th Circuit finds that California controlled substance offense was “drug trafficking offense.” (340) Defendant received a 16-level enhancement because he had been deported after a felony conviction for “a drug trafficking offense” under § 2L1.2(b)(1)(A)(i). He argued that the government failed to prove that he was convicted of an offense involving a controlled substance. California Health & Safety Code §11378 bars possession of a controlled substance for sale. However, California law defines “controlled substance” differently than federal law, so a California conviction may not be a “controlled substance offense” or “a drug trafficking offense” under the federal guidelines. Nonetheless, the Eighth Circuit ruled that the conviction here qualified as a predicate offense triggering the 16-level enhancement. The charging documents sufficiently identified the substance involved as methamphetamine, which is a drug listed in the federal drug schedules. The government also introduced additional documents – an order of court, clerk minutes, and violation minutes. The evidence included documents signed by defendant that said he pled guilty and included the same case number and statute as the charging document. U.S. v. Sanchez-Garcia, 642 F.3d 658 (8th Cir. 2011).

8th Circuit says classifying terrorist threats as crime of violence was error, but harmless. (340) The PSR recommended a 16-level crime of violence increase under § 2L1.2(b)(1)(A)(ii) based on defendant’s prior conviction for terroristic threats under Minnesota Statutes § 609.713. The district court agreed that the terrorist threat conviction was a crime of violence, but only increased the sentence by 12 levels, thus declining the full 16-level increase for a crime of violence. The Eighth Circuit held that the Minnesota terrorist threat conviction was not categorically a crime of violence because the crime includes some offenses that do not have as an element the use of physical force against another, including the sale of more than 10 grams of cocaine in a 90-day period and manufacturing meth in the presence of a child. The error was harmless, however, because the district court clearly indicated that it intended to impose the same sentence under 18 U.S.C. § 3553(a), regardless of whether the appropriate increase under § 2L1.2(b)(1) was eight, 12, or 16. U.S. v. Sanchez-Martinez, 633 F.3d 658 (8th Cir. 2011).

8th Circuit increases for risk of bodily injury for housing workers in overcrowded, unheated house. (340) Immigration officials found 26 undocumented aliens living in two houses designed to hold a total of 10 people. One of the houses did not have heat, despite it being 45 degrees outside, and the only food in either house had been provided by a concerned citizen. Agents learned that 23 of the aliens were employed by defendant, that defendant had rented the houses for the workers, but that he had failed to pay any of the workers in over four weeks. Defendant was convicted of two counts of harboring illegal aliens. The Eighth Circuit upheld a § 2L1.1(b)(6) for intentionally or recklessly creating a substantial risk of death or serious bodily injury. The record demonstrated that defendant knowingly arranged to have over twenty workers reside in two small residences designed to house no more than ten individuals. This type of severe overcrowding, together with lack of heat and furnishings, presented an inherent health-and-safety risk to each of the occupants sufficient to warrant the increase. U.S. v. Oliveira, 623 F.3d 593 (8th Cir. 2010).

8th Circuit rules Arkansas second-degree sexual assault conviction was crime of violence. (340) Defendant pled guilty to illegal reentry, and received a 16-level enhancement because his prior deportation occurred after a conviction for a crime of violence. The conviction in question was second-degree sexual assault in violation of Arkansas Code, § 5-14-125. The Eighth Circuit agreed that the sexual assault conviction qualified as a crime of violence under § 2L1.2(b) (1)(A)(ii). Defendant pled guilty to sexual contact with a minor, and did not object to a PSR that described his touching a five-year old “between her legs on the outside of her genital area, under her undergarments.” A crime with these elements falls within the enumerated offense “sexual abuse of a minor.” Unlike the Armed Career Criminal Act, the sentencing guideline at issue lists “sexual abuse of a minor” as an enumerated felony that is a crime of violence. U.S. v. Paz, 622 F.3d 890 (8th Cir. 2010).

8th Circuit upholds refusal to grant variance in illegal reentry case. (340) Defendant was convicted of illegal reentry. He requested a downward variance from his guideline range of 41-51 months based on a number of factors, including the fact that he was in his 50s with a daughter and granddaughter in the U.S., he had never lived in Mexico as an adult, he had numerous health problems, and the lack of a “fast track” program in the district. The district court sentenced him to 41 months, at the bottom of his advisory guideline range, and the Eighth Circuit affirmed the sentence as reasonable. The district court considered each factor defendant raised in support of the suggested variance, but did not find the suggested mitigating factors persuasive in its overall § 3553(a) analysis. Given defendant’s extensive criminal history, defendant’s likelihood of recidivism was just too great.” U.S. v. Bolivar-Diaz, 594 F.3d 1003 (8th Cir. 2010).

8th Circuit rejects variance based on absence of fast-track program. (340) Defendant was convicted of illegally reentering the U.S. after deportation. After departing downward based on cultural assimilation and an overrepresented criminal history, the court found that his guideline range was 33-41 months. Noting that defendant’s sentence would be further reduced if he had been taken into custody in a federal jurisdiction with a fast-track program, the court sentenced defendant to 12 months and a day. The Eight Circuit reversed, relying on U.S. v. Sebastion, 436 F.3d 913 (8th Cir. 2006) and holding that variances based on the absence of fast-track programs are impermissible. U.S. v. Gonzalez-Alvarado, 477 F.3d 648 (8th Cir. 2007), abrogated on other grounds by Gall v. U.S., 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

8th Circuit says government failed to prove that prior “wobbler” was felony. (340) Defendant received a 16-level enhancement for reentry after deportation following conviction for a felony crime of violence. Defendant had previously been convicted of violating California Penal Code § 261.5(c), unlawful sexual intercourse. That offense, a so-called “wobbler,” is either a misdemeanor punishable by imprisonment in the county jail for a term not exceeding one year, or a felony punishable by imprisonment in the state prison for up to three years. Only the felony version of the offense qualifies for the enhancement. The Eighth Circuit held that the government did not meet its burden of proving the offense was a felony. Under California law, where an offense is alternatively a felony or misdemeanor, it is regarded as a felony for every purpose until judgment. A wobbler becomes a misdemeanor for all purposes if the judgment imposes a punishment other than imprisonment in the state prison. Such a judgment was rendered here. The California court imposed a suspended sentence of 365 days in jail, with credit for time served, and placed defendant on five years’ probation. U.S. v. Viezcas-Soto, 562 F.3d 903 (8th Cir. 2009).

8th Circuit rules “knowingly burning or exploding” is violent felony under ACCA. (340) Defendant was sentenced to the 15-year mandatory minimum sentence under the Armed Career Criminal Act, 18 U.S.C. §924(e), based on the district court’s finding that his Missouri conviction for “knowingly burning or exploding” was a violent felony. The Eighth Circuit affirmed. The panel agreed that the Missouri offense constitutes “arson” within the meaning of §924(e). The generic offense of arson, for purposes of the sentencing enhancement in §924(c), has as elements the malicious burning of real or personal property of another. Under Missouri law, a person commits the crime of knowingly burning or exploding when he knowingly damages property of another by starting a fire or causing an explosion. These elements of the Missouri offense substantially correspond to those of generic arson. U.S. v. Whaley, 552 F.3d 904 (8th Cir. 2009).

8th Circuit says auto theft was not violent felony under ACCA. (340) Defendant was sentenced under the Armed Career Criminal Act based on the district court’s finding that his prior Minnesota convictions for auto theft and temporary auto theft were violent felonies. The Eighth Circuit reversed. In U.S. v. Aleman, 548 F.3d 1158 (8th Cir. 2008), the court held that Minnesota’s auto theft statute was not a crime of violence under the Guidelines, so the panel was constrained to hold that it was not a violent felony under the ACCA. The panel further held that a conviction under Minnesota’s temporary auto theft statute was not a violent felony under the ACCA because it involves the same offense conduct as auto theft, but “does not require that the offender intend to permanently deprive the owner of the vehicle.” The error in sentencing defendant under the ACCA was not harmless. U.S. v. Walker, 555 F.3d 716 (8th Cir. 2009).

8th Circuit rules taking and driving a vehicle without consent is not a violent felony. (340) Defendant was sentenced as an armed career criminal based on his prior Wisconsin felony conviction for taking and driving a vehicle without consent and several Virginia felony convictions for grant larceny auto. Based on U.S. v. Williams, 537 F.3d 969 (8th Cir. 2008), the Eighth Circuit held that defendant’s Wisconsin conviction for taking and driving a vehicle without consent was not a violent felony under the ACCA. In addition, there was insufficient evidence in the record to determine which offense defendant committed under the Virginia grand larceny statute. The panel vacated the sentence and remanded for resentencing. U.S. v. Rush, 551 F.3d 749 (8th Cir. 2008).

8th Circuit rules Minnesota auto theft was not crime of violence. (340) Defendant was sentenced as a career offender based on prior Minnesota convictions for motor vehicle theft and for aiding and abetting second-degree murder. The Eighth Circuit reversed, holding that defendant’s motor vehicle theft offense was not a crime of violence. The auto theft statute could only be violated one way—by taking a vehicle without the owner’s consent. Under U.S. v. Williams, 537 F.3d 969 (8th Cir. 2008), such an offense is not a crime of violence, and defendant should not have been sentenced as a career offender. The parties agreed that the error was not harmless despite the court’s significant variance from the advisory guideline range of 235-262 months to the statutory minimum of 120 months. The government had requested a downward variance under §5K1.1 based on defendant’s substantial assistance, and stated at oral argument that on remand it would consider moving under 18 U.S.C. §3553(e) for a sentence below the statutory minimum. U.S. v. Aleman, 548 F.3d 1158 (8th Cir. 2008).

8th Circuit rules Missouri tampering by operation is not crime of violence. (340) Defendant pled guilty to being a felon in possession of a firearm and was sentenced to 262 months, which the Eighth Circuit upheld on appeal. The Supreme Court then decided Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), which held that the offense of driving under the influence in New Mexico was not a violent felony under 18 U.S.C. §924(e). Relying on Begay, an Eighth Circuit panel overruled circuit precedent and held that auto tampering by operation in Missouri is not a crime of violence under U.S.S.G. §4B1.1. In light of this intervening decision, the Eighth Circuit granted defendant’s petition for rehearing, and held that it was plain error for the district court to conclude that defendant’s commission of tampering by operation was a crime of violence. There was a reasonable probability that a reduced advisory range would have influenced the district court to impose a more lenient sentence. U.S. v. Davidson, 551 F.3d 807 (8th Cir. 2008).

8th Circuit relies on charging document to find that prior offense involved “abusive sexual contact” with minor. (340) Defendant was convicted of attempted production of child pornography, in violation of 18 U.S.C. §2251(a). Section 2251 carries a 25-year mandatory minimum if the defendant has a prior state conviction for “abusive sexual contact” involving a minor. Defendant had a 1987 Iowa state conviction for indecent contact with a child, in violation of Iowa Code §709.12. Although §709.12 is defined more broadly than the generic offense of abusive sexual contact, the Eighth Circuit ruled that the trial information (which included a complaint and judgment entry and qualified as a charging document) sufficiently showed that the prior conviction was abusive sexual contact. The trial information alleged that defendant “fondle[d] and/or touch[ed] the breast of a child for the purpose of arousing or satisfying his sexual desires.” Because the charging document narrowed an over-inclusive Iowa statute, the government was not required to produce further support to prove that he was convicted of the generic offense. U.S. v. Pierson, 544 F.3d 933 (8th Cir. 2008).

8th Circuit rejects crime of violence finding where record did not identify statute of conviction. (340) Defendant pled guilty to illegally reentering the country following deportation. The district court found that he had three prior misdemeanor convictions for crimes of violence, and imposed a four-level increase under §2L1.2(b)(1)(E). Defendant admitted that a 1998 Mississippi conviction for fourth degree domestic assault was based on an altercation in which he struck one of his roommates, and a 1999 assault conviction was for striking or attempting to strike a police officer. The Eighth Circuit held that the record was insufficient to support the court’s finding that the two Mississippi misdemeanor convictions were crimes of violence. The court could not obtain any court records of the Mississippi convictions, and therefore the record did not identify the state statutes or local ordinances that defendant violated. Since the elements of the offenses were unknown, the district court erred in finding they were crimes of violence. Defendant’s admission at sentencing was not sufficient proof that actual, attempted, or threatened use of force was an element of the offense. U.S. v. Reyes-Solano, 543 F.3d 474 (8th Cir. 2008).

8th Circuit holds possession of sawed-off shotgun is a violent felony. (340) Defendant pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and was sentenced as an Armed Career Criminal, 18 U.S.C. § 924(e). The Eighth Circuit affirmed, holding that his prior Arkansas conviction for criminal use of a prohibited weapon was a violent felony under the ACCA. The conviction involved his use of a sawed-off shotgun. Defendant contended that the ACCA was triggered only if a prior conviction involved a sawed-off shotgun meeting the federal definition of a sawed-off shotgun in 26 U.S.C. § 5845, which is based on the barrel length or overall length of the gun. The Eighth Circuit found this irrelevant. The ACCA applies when a prior conviction is for a crime that “otherwise involves conduct that presents a serious potential risk of physical injury.” At the time of the conviction, Arkansas law prohibited possession of any sawed-off shotgun, regardless of length. The Arkansas Supreme Court has held that a conviction for use of each prohibited weapons listed in the statute, including a sawed-off shotgun, has the element that the weapon “will inflict serious physical injury or death and serves no lawful purpose.” U.S. v. Vincent, 519 F.3d 732 (8th Cir. 2008).

8th Circuit holds that first-degree assault committed in heat of passion is crime of violence. (340) Defendant argued that his Colorado conviction for assault in the first degree was not a crime of violence under § 2K2.2(a)(2) because he acted in the heat of passion. The Eighth Circuit disagreed. The Guidelines only require conduct that poses a “serious potential risk of injury.” § 4B1.2(a)(2). An assault in the first degree, whether in the heat of passion or not, still requires that the victim suffer serious bodily injury or that a state official be threatened with a deadly weapon. The court also ruled that defendant’s second enhancing felony, a conviction for sexual assault on a child, was a crime of violence. Sexual contact between parties of “differing physical and emotional maturity carries a ‘substantial risk that physical force . . . may be used in the course of committing the offense.’ ” U.S. v. Banks, __ F.3d __ (8th Cir. Jan. 9, 2008) No. 06-3593.

8th Circuit holds that Iowa forgery was aggravated felony. (340) Defendant was convicted of illegal reentry after deportation and received an eight-level aggravated felony enhancement under § 2L1.2(b)(1)(C) based on a Iowa forgery conviction. An aggravated felony is defined to include “an offense relating to … forgery.” 8 U.S.C. § 1101(a)(43)(R). However, the mere fact that a state labels a crime as forgery does not control whether it is actually related to forgery. Here, defendant’s conviction was for possession of forged documents required to legally enter, remain, or work in this country, either with intent to defraud or with the knowledge that the person is facilitating a fraud. The Eighth Circuit held that the state offense did qualify as forgery, and thus the aggravated felony enhancement was proper. Possession of a false document with the intent to perpetrate a fraud is related to the false making or material alteration of a document with the intent to deceive for purposes of a sentencing enhancement under § 2L1.2(b)(1)(C). U.S. v. Chavarria-Brito, 526 F.3d 1184 (8th Cir. 2008).

8th Circuit relies on indictment and plea to find that indecency with a child was sexual abuse of a minor. (340) Defendant received a 16-level crime of violence enhancement under §2L1.2(b)(1)(A)(ii) based on his prior Texas conviction for indecency with a child. Under §2L1.2(b)(1)(A)(ii), a crime of violence includes “sexual abuse of a minor.” Defendant was convicted under a subsection of the Texas statute that included conduct that did not fit the ordinary, common meaning of a sexual abuse of a minor. Because the statute was over inclusive, the Eighth Circuit found that the district court did not err by looking to the indictment and plea papers to determine that defendant admitted facts that fit the generic definition of a sexual abuse of a minor. The charge that defendant pled guilty to stated that the victim was under 17 years old and a female, and that defendant was at least 25 at the time of the offense. The district court properly took judicial notice of these facts, because by pleading guilty, defendant admitted them. Given the eight-year age difference, the district court did not err in finding that his prior conviction was for sexual abuse of a minor. U.S. v. Medina-Valencia, 538 F.3d 831 (8th Cir. 2008).

8th Circuit says Missouri felony drunk driving is a crime of violence. (340) The district court found that defendant’s two prior Missouri felony driving while intoxicated convictions were crimes of violence under § 2K2.1(a)(2). In the first appeal, the Eighth Circuit vacated the sentence, because the statute allowed conviction through non-driving conduct, and the PSR did show that defendant was driving. At resentencing, the district court found was the driver. In this second appeal, defendant argued that the government proved only that he operated a motor vehicle. The Eighth Circuit held that the Missouri convictions constituted crimes of violence in light of James v. U.S., 127 S.Ct. 1586 (2007), which clarified that the question is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another. The Eighth Circuit in U.S. v. McCall, 507 F.3d 670 (8th Cir. 2007), applied James to find that “a charging paper alleging the felony offense of driving while intoxicated should be construed as referring to the dominant offense of driving while intoxicated,” which is a violent felony. Because “crime of violence” is construed under the Guidelines the same as a “violent felony” under the ACCA, the analysis applied here. The over-inclusive nature of the Missouri statute did not preclude a finding that a conviction under the statute was a crime of violence under § 2K2.1(a)(2). U.S. v. Spudich, 510 F.3d 834 (8th Cir. 2008).

8th Circuit says only limited kinds of auto thefts are crimes of violence. (340) Defendant received an enhanced sentence under §2K2.1(a)(2) based in part on the district court’s finding that his prior convictions for auto theft and auto tampering qualified as crimes of violence. This was in accord with circuit case law holding that auto theft is a crime of violence. See U.S. v. Sprouse, 394 F.3d 578 (8th Cir. 2008). While defendant’s appeal was pending, the Supreme Court decided Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), which concluded that drunk driving is not a violent felony under the ACCA. For a non-listed crime to qualify as a violent felony under the so-called “otherwise” clause, Begay held that the offense must pose a similar degree of risk of physical injury as the example crimes and be similar in kind to the examples crimes. Based on Begay, the Eighth Circuit held that auto theft by deception, auto theft without consent, and auto tampering are not crimes of violence for purposes of §2K2.1(a)(2). However, auto theft by coercion is closely analogous to extortion and does constitute a crime of violence. U.S. v. Williams, 537 F.3d 969 (8th Cir. 2008).

8th Circuit says second-degree burglary of “inhabitable structure” is crime of violence. (340) The district court sentenced defendant as a career offender based on its finding that his 1988 Missouri conviction for second-degree burglary was a crime of violence under § 4B1.2. The Missouri statute applies to one who enters or remains unlawfully in a building or “inhabitable structure” for the purpose of committing a crime in there. The definition of an inhabitable structure is broad and includes a ship, trailer or airplane. Defendant’s Commitment Report did not specify what type of inhabitable structure involved in his offense. The Eighth Circuit held that the offense constituted a crime of violence because it “otherwise involved conduct that presents a serious potential risk of physical injury to another.” In James v. United States, 55 U.S. __ (2007), decided after defendant was sentenced, the Supreme Court held that attempted burglary, under Florida law, is a violent felony under the “otherwise involves” provision of the ACCA. It found that attempted burglary posed a “serious risk of potential injury to another,” given the possibility of a face-to-face confrontation between the burglar and a third party, whether an occupant, a police officer, or a bystander. The same reasoning applied here. Regardless of whether the inhabitable structure defendant unlawfully entered was a house, car, boat or airplane, there existed the risk of a violent confrontation between defendant and the occupant, the police, or another third party. U.S. v. Cantrell, 530 F.3d 684 (8th Cir. 2008).

8th Circuit vacates ACCA sentence that was based on driving while intoxicated felonies. (340) Defendant was convicted of being a drug user in possession of a firearm. He received an enhanced 15-year sentence under the Armed Career Criminal Act based on three prior felony convictions for operating a motor vehicle while intoxicated, which under existing Eighth Circuit caselaw, was classified as a violent felony. While defendant’s appeal was pending, the Supreme Court decided Begay v. U.S., 553 U.S. 137, 128 S.Ct. 1581 (2008), which held that that driving under the influence of alcohol is not a violent felony as defined in the ACCA. The Eighth Circuit held that the Supreme Court’s decision in Begay entitled defendant to plain error relief because his three DWI conviction did not qualify as violent felonies under the ACCA. Defendant was not subject to the penalties of § 924(e)(1) and the district court plainly erred by imposing such penalties upon him. U.S. v. Heikes, 525 F.3d 662 (8th Cir. 2008).

8th Circuit finds record did not permit meaningful review of variance sentence. (340) Defendant pled guilty to knowingly hiring ten or more unlawful aliens. Although his guideline range was 12-18 months, the district court varied downward to impose a sentence of time served, with a two-year period of supervised release that included a total of 12 months confinement with work release privileges. The Eighth Circuit rejected the government’s contention that the variance was extraordinary, but nonetheless remanded because the record did not permit meaningful appellate review. The percentage approach advocated by the government (under which defendant received a 99.73% deviation from the minimum advisory sentence) is misleading where the court varies from a relatively short advisory sentence. The district court effectively varied three offense levels, which was not extraordinary or dramatic. However, the court failed to adequately state specific reasons for the variance. At sentencing, the court stated only that it was fashioning a sentence to punish defendant for exploiting undocumented workers for his personal benefit but which recognized defendant neither sexually nor physically abused those workers. The court later expanded on its reason by noting that defendant had provided the workers with a good place to live and had fed them. However, the panel remanded, because it was impossible with the record to conduct a meaningful review of whether the court gave significant weight to any improper or irrelevant factors. U.S. v. Chettiar, 501 F.3d 854 (8th Cir. 2007).

8th Circuit finds upward variance based on criminal history was not inconsistent with decision not to depart. (340) The district court declined to impose an upward departure under U.S.S.G. § 4A1.3(a)(1). However, it did impose a sentence 14 months above the upper end of the advisory guideline range, finding that defendant’s prior conduct was not adequately reflected by the advisory guideline range, and emphasizing his commission of a serious crime each time he reentered the country following deportation. Defendant argued that the district court acted inconsistently by declining to depart under § 4A1.3(a) for an underrepresented criminal history and then varying upward based on defendant’s commission of serious crimes and his potential for recidivism. The Eighth Circuit found no inconsistency, noting that the standards for departure in § 4A1.3(a) and the standards in § 3553(a)(1) and (a)(2)(C) are not identical. Here, defendant’s history of deportation and illegally reentry, together with his serious criminal record, justified the upward variance (only one of his three illegal entries was represented in the court’s advisory guideline calculation). Moreover, a little more than a year after his third illegal entrance, defendant was arrested for sexually assaulting his two young nieces. His repeated illegal reentry into the U.S. was strong evidence of his propensity to recidivate. U.S. v. Solis-Bermudez, 501 F.3d 882 (8th Cir. 2007).

8th Circuit holds supporting documents showed that California offense was “drug trafficking offense.” (340) Defendant pled guilty to illegal reentry after deportation, and received a 16-level enhancement under § 2L1.2(b)(1)(A)(i) for a previous conviction for a “drug trafficking offense.” The offense was a violation of California Health and Safety Code § 11352(a), which applied to any person who “transports, imports into this state, sells, furnishes, administers or gives away … [a] controlled substance…” The Eighth Circuit found that the California statute was overinclusive because it included acts that did not meet § 2L1.2’s definition of drug trafficking. However, the government provided sufficient additional information to prove that the conviction qualified as a drug trafficking offense. When a statute is overinclusive, the court may consider additional information such as the terms of the charging documents, or the terms of the plea agreement or some other comparable judicial record in which the factual basis for the plea was confirmed by the defendant. At sentencing, the government offered the complaint and trial information, listing two counts and two special allegations, and indicating that defendant pled guilty to both counts. Defendant’s plea to counts one and two of the information was sufficient to satisfy the “drug trafficking” definition of § 2L1.2. U.S. v. Garcia-Medina, 497 F.3d 875 (8th Cir. 2007).

8th Circuit holds that auto theft is a violent felony under ACCA. (340) Defendant pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court found that his previous convictions for auto theft and temporary auto theft were violent felonies and that defendant was subject to the Armed Career Criminal Act, 18 U.S.C. § 924(e) (1). In U.S. v. Sun Bear, 307 F.3d 747 (8th Cir. 2002), abrogation recognized by U.S. v. Williams, 537 F.3d 969 (8th Cir. 2008), the Eighth Circuit held that auto theft was a violent felony under the identically worded U.S.S.G. § 4B1.2. Defendant argued that Sun Bear was at odds with the Supreme Court’s decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), which held that a Florida drunk driving conviction was not a “crime of violence” under 18 U.S.C. § 16(b). However, 18 U.S.C. § 16(b) can be distinguished from the violent felony provision in § 924(e)(2)(b)(ii) because § 16(b) has a mens rea component, while § 924(e)(2)(b)(ii) does not. U.S. v. McCall, 439 F.3d 967 (8th Cir. 2006), overruling recognized by U.S. v. Begay, 470 F.3d 964 (10th Cir. 2006). Thus, in U.S. v. Johnson, 448 F.3d 1017 (8th Cir. 2006), another panel held that a conviction for grand theft auto was a crime of violence under § 4B1.2. Since one panel cannot overturn another panel, the Eighth Circuit held that the court did not err in concluding that the two previous convictions for auto theft and temporary auto theft were violent felonies under the ACCA. U.S. v. Walker, 494 F.3d 688 (8th Cir. 2007).

8th Circuit rejects variance based on absence of fast-track program. (340) Defendant was convicted of illegally reentering the U.S. after deportation. After departing downward based on cultural assimilation and an overrepresented criminal history, the court found that his guideline range was 33-41 months. Noting that defendant’s sentence would be further reduced if he had been taken into custody in a federal jurisdiction with a fast-track program, the court sentenced defendant to 12 months and a day. The Eight Circuit reversed, holding that variances based on the absence of fast-track programs are impermissible. See U.S. v. Sebastion, 436 F.3d 913 (8th Cir. 2006). U.S. v. Gonzalez-Alvarado, 477 F.3d 648 (8th Cir. 2007), abrogated on other grounds by Gall v. U.S., 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

8th Circuit holds that third-degree criminal sexual conduct was crime of violence. (340) Defendant received a 16-level enhancement under § 2L1.2(b)(1)A)(ii) based on the court’s finding that his prior Minnesota conviction for third-degree criminal sexual conduct was a “crime of violence.” The Minnesota statute defines the offense as engaging in sexual penetration “by force or coercion,” and defendant argued that it was unclear whether the element of force was necessary to his conviction. The Eighth Circuit held that the offense was a crime of violence, since the charging documents and the plea colloquy demonstrated that defendant committed the crime by force. The charging document states that defendant and a friend grabbed the victim by the neck when she attempted to leave an apartment, and they forced her into a bedroom where the two men forcibly removed her clothing and had intercourse with her against her will. The transcript of defendant’s guilty plea in state court confirmed that defendant admitted through an interpreter that he and the friend used force to have intercourse with the victim against her will. U.S. v. Lopez-Zepeda, 466 F.3d 651 (8th Cir. 2006).

8th Circuit holds that because reentering crime was ongoing, defendant committed offense while on probation. (340) Defendant was a Mexican national who had been deported several times, always returning to the United States. His most recent deportation was in 2002. In February 2004, defendant was briefly incarcerated and placed on probation for state drug offenses in California. In March 2005, he was arrested in Iowa on a state weapons charge. Authorities eventually discovered he was in the country illegally, and he pled guilty to being in the U.S. after deportation. He received two criminal history points under § 4A1.1(d) for committing the current offense while under a criminal justice sentence (probation) and one point under § 4A1.1(c) for committing the current offense less than two years after release from imprisonment. Defendant argued that the criminal history points were improper because he did not engage in any new criminal activity while on probation or following his release from imprisonment in 2004. The Eighth Circuit held that because the crime of illegally reentry under 8 U.S.C. § 1326 is an ongoing offense that continues until a persona is discovered by authorities, defendant was engaged in “relevant conduct” the entire time he was in the U.S. until he was discovered. Because some of this relevant conduct occurred while defendant was on probation, the enhancements were proper. U.S. v. Alba-Esqueda, 457 F.3d 859 (8th Cir. 2006).

8th Circuit approves upward departure based on assault on illegal alien. (340) Defendant pled guilty to being an illegal alien in possession of firearms and ammunition, and knowingly concealing and harboring an illegal alien. The district court made a six-level upward departure under § 5K2.21 based on defendant’s uncharged assault on an illegal alien. The Eighth Circuit affirmed, ruling that the assault was related to the offense of conviction. The victim, an illegal alien, was one of defendant’s employees and was assaulted during the course of his employment by defendant. Defendant concealed, harbored, and shielded illegal aliens by employing them at his restaurant. The court did not improperly consider the vulnerability of the victim. The court did not apply a vulnerable victim enhancement under § 3A1.1(b)(1), but limited consideration of the vulnerability of the victim to its § 5K2.21 departure analysis. The court noted that the employee was “particularly vulnerable” to this type of abuse because, as an illegal alien, he could not report the assault to law enforcement. Defendant’s choice of victim was a fact related to the uncharged conduct, and demonstrated the actual seriousness of defendant’s criminal actions. The 47-month sentence imposed was reasonable. It exceeded the advisory range by only one month, and was reasonable under the circumstances. U.S. v. Ademi, 439 F.3d 964 (8th Cir. 2006).

8th Circuit says California conviction for lewd and lascivious acts on 14- or 15-year old was crime of violence. (340) Defendant, convicted of unlawfully entering the U.S. after deportation, received a 16-level enhancement under § 2L1.2 (b)(1)(A) (ii) for a prior crime of violence conviction. The Eighth Circuit agreed that defendant’s earlier state conviction for lewd and lascivious acts upon a 14- or 15-year old child was a crime of violence. The term crime of violence includes “sexual abuse of a minor.” See Note 1(B)(iii) to § 2L1.2. The state statute under which defendant was convicted required the defendant to be at least ten year older than the victim. The ten-year age difference between the victim and the perpetrator, combined with the young age of the victim, established the abusive nature of the conduct. Although a crime involving a teenage victim (who might have given consent) and a similarly-aged perpetrator might not constitute “sexual abuse of a minor,” the ten-year age difference here placed the conduct squarely within the bounds of sexual abuse. U.S. v. Montenegro-Recinos, 424 F.3d 715 (8th Cir. 2005).

8th Circuit holds that conviction for lascivious acts with a child was crime of violence. (340) Defendant pled guilty to being found in the U.S. after a prior deportation. The district court found that his prior conviction for Lascivious Acts With a Child, in violation of Iowa code § 709.8, was an aggravated felony, but not a crime of violence under § 2L1.2(b)(1)(B). The Eighth Circuit concluded that the offense was a crime of violence, and reversed. The offense involved here, achieving sexual gratification by unlawfully touching a child, constitutes sexual abuse of a minor. The fact that the touching was through clothing did not matter – defendant’s intent in committing the abuse was to seek sexual gratification. The district court erred in declining to apply a 16-level enhancement under § 2L1.2 (b)(1)(B). U.S. v. Garcia-Juarez, 421 F.3d 655 (8th Cir. 2005).

8th Circuit rejects Jones and Booker challenge to substantial risk of injury enhancement. (340) Defendant pled guilty to transporting eleven illegal aliens, in violation of 8 U.S.C. § 1324 (A)(1)(ii). Over defendant’s objection, the district court imposed a three-level increase under § 2L1.1(b)(50 for creating a substantial risk of injury. Defendant received a sentence of 18 months. The Eighth Circuit rejected defendant’s claim that the enhancement exposed him to a sentence in excess of the statutory maximum in violation of Jones v. U.S., 526 U.S. 227 (1999). Defendant was not charged under one statute and sentenced, based upon judge-found facts, under a second statute to a higher maximum. Nor was he ever exposed to a higher statutory maximum. The enhancement also did not violate U.S. v. Booker, 543 U.S. 220 (2005). The court proposed two alternate identical 18-month sentences in the event the enhancement or the guidelines in their entirely were held inapplicable. Further, the judge specifically considered the sentencing factors set forth in 18 U.S.C. § 3553(a)(1)-(7). The fact that a co-defendant did not receive the enhancement (the judge avoided constitutional error by declining to impose the increase) did not make the enhancement improper for defendant. U.S. v. Carasa-Vargas, 420 F.3d 733 (8th Cir. 2005).

8th Circuit holds that argument for departure was impermissible collateral attack on prior conviction. (340) At sentencing, the district court departed downward from a total offense level of 21, which included a 16-level increase based on a prior conviction for an aggravated felony. The court based its departure decision on the “disproportionate impact” of applying the “entire 16-level increase” to defendant’s total offense level. In U.S. v. Dyck, 334 F.3d 736 (8th Cir. 2003), the court held that the circumstances of a prior offense is not a proper basis to support a sentencing departure under U.S.S.G. § 2L1.2. Defendant tried to get around Dyck by arguing that the court’s departure was a finding that the prior crime of violence did not occur at all. Defendant’s argument was essential a collateral attack on the validity of his state court conviction. However, absent express statutory authorization, a prior conviction used to enhance a sentence cannot be collaterally attacked unless a complete deprivation of counsel existed. The Eighth Circuit concluded that the district court erred in granting defendant a downward departure. U.S. v. Rodriguez-Ceballos, 365 F.3d 664 (8th Cir. 2004).

8th Circuit applies death or bodily injury increase even though defendant was not driving van at time of accident. (340) Defendant transported 11 illegal aliens to Michigan in a cargo van with only four seats. During the trip, defendant asked one of the alien passengers to drive for him. The alien fell asleep at the wheel, crashing and killing two other passengers. Defendant was convicted of transporting illegal aliens. He appealed a § 2L1.1(b)(6) increase which applies if any person dies, arguing that it was the driver’s negligent operation of the vehicle, rather than his own conduct, that proximately caused the deaths. The Eighth Circuit affirmed the increase, since the deaths of the two passengers seated in an open area in the van’s rear were causally connected to the dangerous conditions created by defendant’s unlawful conduct. Defendant elected to smuggle 11 individuals for money in an overloaded van on a nonstop 2000 mile trip over interstate highways without the benefit of seats or seatbelts for 8 of the passengers. Defendant also selected one of the passengers to drive during part of the trip and failed to ensure that he stayed awake while driving the van. The negligence of the alien driver was not an intervening cause relieving defendant of responsibility for the deaths. U.S. v. Flores-Flores, 356 F.3d 861 (8th Cir. 2004).

8th Circuit holds that Apprendi not applicable to fact of prior conviction. (340) Defendant pled guilty to illegal reentry following deportation, in violation of 8 U.S.C. § 1326(a), which provides for a two-year maximum sentence. Under § 1326(b)(2), the maximum sentence is 20 years if the alien had a prior aggravated felony conviction. The district court found that defendant had a prior aggravated felony, and sentenced him to 46 months. The Eighth Circuit held that the district court’s use of the prior conviction to increase defendant’s sentence did not violate Apprendi v. New Jersey, 530 U.S. 466 (2000). The plain language of Apprendi excepts the fact of prior convictions from its holding. Almendarez-Torres v. U.S., 523 U.S. 224 (1998), holding that § 1326(b)(2) is a sentencing factor, not a separate criminal offense, remains good law. U.S. v. Perez-Perez, 337 F.3d 990 (8th Cir. 2003).

8th Circuit says departure motion did not injure defendant where he received sentence contemplated by plea agreement. (340) In 1999, defendant was convicted of illegally reentry after deportation. In 2001, he pled guilty again to illegal reentry after deportation, thereby admitting that he also violated a special condition of his previous supervised release. During sentencing, the government moved for an upward departure on the new illegal reentry conviction. In a combined sentencing and supervised release revocation hearing, the district court denied the motion, and sentenced defendant to consecutive sentences of 30 months imprisonment and three years of supervised release for the new illegal reentry conviction, and 24 months of imprisonment for the supervised release violation. The Eighth Circuit rejected defendant’s claim that he had no notice that the government would seek a greater punishment than set forth in the PSR. The government courtesy copied a letter to defendant’s attorney notifying her that the government night seek an upward departure, and it filed a formal position paper with the court 12 days before the hearing. Moreover, the court denied the motion and sentenced defendant within the statutory maximum and within the sentence contemplated by the plea agreement. Defendant suffered no cognizable injury. The government’s motion did not violate defendant’s due process rights. Absent an abuse of discretion, an appellate court will not vacate a revocation sentence that falls within the maximum limit stated in § 3583. U.S. v. Rodriguez-Favela, 337 F.3d 1020 (8th Cir. 2003).

8th Circuit holds that Utah automobile homicide qualified as crime of violence. (340) Defendant was convicted of illegally reentering the country after deportation, in violation of 8 U.S.C. § 1326. He received a 16-level increase under § 2L1.2(b)(1)(A)(ii) based on the court’s finding that his prior state court conviction for automobile homicide was a “crime of violence” under the 2001 amendments to the § 2L1.2 application notes. The notes define a crime of violence as (I) an offense that has as an element the use or threatened use of physical force against the person of another, and (ii) includes murder, manslaughter and certain other listed offenses. Subsection (I) is identical to the definition in Title 18 U.S.C. § 16(a) except that the guideline definition applies only to physical force against the person, but not the property, of another. Subpart II is significantly different from § 16(b) in that it contains a list of specific crimes and does not include § 16(b)’s catchall phrase “any other offense … that by its nature involves a substantial risk that physical force may be used … in the course of committing the offense.” After examining the approach of several circuits on this issue, the Eighth Circuit concluded that (1) the “use” prong of subsection (I) does not have a volitional element, and (2) the crime of automobile homicide involved use of force against another person to cause death, and thus qualified as a crime of violence. The court refused to read a mens rea element into a guideline where the Sentencing Commission has not provided for it. Because no volitional element is required, and defendant did not otherwise argue that automobile homicide did not have as an element the use of physical force against another, the offense constituted a crime of violence. U.S. v. Gonzalez-Lopez, 335 F.3d 793 (8th Cir. 2003).

8th Circuit rejects downward departure in illegal reentry case. (340) Defendant was convicted of illegal reentry after deportation subsequent to an aggravated felony conviction in violation of 8 U.S.C. § 1326(a) and (b). The district court thought it unfair that defendant’s prior conviction could be used both to increase his base offense level and his criminal history category, and therefore reduced the 12-level enhancement required by § 2L1.2(b)(1)(B) to only four levels. The Eighth Circuit held that the departure was an abuse of discretion. The Sentencing Commission has specifically provided that defendant’s prior conviction be used both to enhance his base offense level and to calculate his criminal history score. The court’s mere “dissatisfaction with the available sentencing range” is not a proper basis for a departure. The fact that defendant played only a minor role in the prior basis also was an impermissible basis for departing. Defendant’s role in the prior offense would have been addressed when he was sentenced for it. The court’s conclusion that a departure was warranted because defendant did not enter the country for illegal purposes was also erroneous. The harm sought to be presented was the illegal reentry itself, for whatever purpose. The record was devoid of facts supporting the court’s assertion that the conditions at the county jail facility were so poor as to warrant a departure. In addition, defendant’s educational experience did not render his case outside the heartland of cases. U.S. v. Dyck, 334 F.3d 736 (8th Cir. 2003).

8th Circuit holds stealing was aggravated felony even though term of imprisonment was suspended. (340) The district court applied an eight-level aggravated felony enhancement based on defendant’s 1996 felony conviction for stealing. Defendant was originally sentenced to five years of probation, but after a drug conviction, the state court revoked his probation and imposed a new sentence of four years of imprisonment, which the court then suspended and ordered five years of probation. Note 2 to § 2L1.2 and 8 U.S.C. § 1101(a)(43)(G) define an aggravated felony to include “a theft offense … for which the term of imprisonment [is] at least one year.” Because defendant received a term of imprisonment of four years for violating the probation conditions connected to his stealing conviction, the district court concluded that the stealing conviction was an aggravated felony. Defendant argued that his stealing conviction was not an aggravated felony because the term of incarceration was suspended. However, under circuit precedent, a felony conviction is an aggravated felony under § 2L1.2 if the defendant received a sentence of at least one year of imprisonment, “even if the sentence is suspended.” U.S. v. Tejeda-Perez, 199 F.3d 981 (8th Cir. 1999). Any reference to a term of imprisonment is deemed to include the period of incarceration or confinement ordered by a court “regardless of any suspension of the imposition or execution of that imprisonment.” U.S. v. Demirbas, 331 F.3d 582 (8th Cir. 2003).

8th Circuit holds that Iowa offense of identity theft was “aggravated felony.” (340) Defendant illegally reentered the U.S. after deportation. The district court found that his prior conviction in Iowa for identity theft qualified as an aggravated felony, which justified that eight-level (rather than a four-level) increase to his offense level. The Eighth Circuit agreed. Iowa’s theft statute describing theft offenses in general, and identity theft specifically, reflects that identity theft is an aggravated felony “theft” crime under 8 U.S.C. § 1101(a)(43(G). Iowa’s general definition of theft under Iowa Statute § 714.1 makes it a crime not only to take the property of another, but also to use that property without the owner’s permission. Iowa’s identity theft statute includes many of the same considerations as the general theft statute. It was apparent that the Iowa legislature intended that identity theft, by its name and its description, be a more specific type of theft crime. U.S. v. Mejia-Barba, 327 F.3d 678 (8th Cir. 2003).

8th Circuit holds that “sentence imposed” was maximum of indeterminate sentence. (340) In 1990, defendant was convicted in Oregon of a “drug trafficking offense.” He received an indeterminate sentence of eight months to five years, and was paroled eight months after sentencing. He argued that the Oregon conviction did not constitute an aggravated felony under § 2L1.2(b)(1)(A) because the “sentence imposed” did not exceed 13 months. The Eighth Circuit held that the “sentence imposed” on defendant by the Oregon state court was the maximum of the indeterminate sentence, or five years, for purposes of § 2L1.2(b)(1)(A). First, the “sentence imposed” means the sentence reflected in the criminal judgment, not the sentence the defendant ultimately serves. See Note 1(A)(iv) to § 2L1.2. Second, under common law and the federal courts, indeterminate sentences are universally understood to be sentences for the maximum term for which the defendant might be imprisoned. U.S. v. Rodriguez-Arreola, 313 F.3d 1064 (8th Cir. 2002).

8th Circuit finds no ex post facto violation where prior robbery warranted same increase under both guidelines. (340) Defendant pled guilty to illegally reentering the U.S. after deportation, and received a 16-level enhancement under § 2L1.2 because the district court found that his prior conviction for second-degree robbery was a felony crime of violence. Defendant argued that the district court erred in using the amended guideline in effect at the time of sentencing, rather than the guideline in effect at the time of the offense. Because either version of § 2L1.2 would have required the same 16-level increase, the Eighth Circuit found no ex post facto violation. Section 2L1.2(b)(1)(A)(ii), as amended November 1, 2001, provides for the 16-level increase if the prior conviction was for a felony crime of violence. Note 1B(ii)(II) defines “crime of violence” to include “robbery.” Under the prior guideline, the 16-level increase was imposed if the prior conviction was for any aggravated felony. See USSG § 2L1.2(b)(1)(A)(2000). The definition of “aggravated felony” included any “crime of violence” under 18 U.S.C. § 16. Robbery, as defined in the California Penal Code, requires the crime to be accomplished through “force or fear.” Thus, by its nature it presents “a substantial risk that physical force against the person or property of another may be used,” and constitutes a crime of violence under § 16(b). U.S. v. Valladares, 304 F.3d 1300 (8th Cir. 2002).

8th Circuit holds that issue of prior aggravated felony need not be submitted to jury. (340) Defendant pled guilty to unlawfully reentering the country after deportation, in violation of 8 U.S.C. § 1326(a) (authorizing a two-year maximum term of imprisonment) and (b)(2) (raising the maximum sentence to 20 years for aliens with a prior aggravated felony conviction). He argued on appeal that § 1326(b)(2) violated his 6th Amendment right to have all facts that increase the maximum penalty submitted to a jury and determined beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466 (2000). The issue was not waived because defendant’s guilty plea expressly reversed the right to challenge on appeal any issues that might arise if the court “impose[d] a sentence in violation of the law apart from the sentencing guidelines.” The Eighth Circuit nonetheless found no Apprendi error, since the plain language of the case excepts the fact of prior convictions from its holding. The Apprendi court specifically refused to overrule Almendarez-Torres v. U.S., 523 U.S. 224 (1998), which upheld the validity of the aggravated felony enhancement in § 1326(b). Although Almendarez-Torres addressed the 5th Amendment right to indictment by a grand jury, while defendant raised a 6th Amendment challenge, this distinction was not the basis for reversal. The issue involved a prior conviction, and the holding of Apprendi expressly excepted the issue of recidivism from the rule it announced. U.S. v. Kempis-Bonola, 287 F.3d 699 (8th Cir. 2002).

8th Circuit finds counsel’s failure to seek departures for alien in drug case was not ineffective. (340) Defendant argued that his counsel was ineffective in not moving for a downward departure based on his willingness to waive resistance to deportation, and because of the effect on his sentence of being a deportable alien. Under U.S. v. Cruz-Ochoa, 85 F.3d 325, 325-26 (8th Cir. 1996), a sentencing court may depart downward based on a defendant’s willingness to waive resistance to deportation. However the Eighth Circuit has not decided whether the effect on incarceration of being a deported alien can warrant a downward departure. The Second, Fifth, Tenth and Eleventh Circuits hold it is not a basis for departure, while the Seventh, Ninth and D.C. Circuits have approved departures on this ground. The panel ruled that “[f]ailure to move for a downward departure on the basis not adopted in this circuit cannot be said to be outside the broad range of reasonable assistance.” Moreover, failure to request a departure based on defendant’s status was not ineffective given counsel’s strategy to avoid the risk of diverting the court’s “focus” from his successful drug quantity arguments. U.S. v. Sera, 267 F.3d 872 (8th Cir. 2001).

8th Circuit applies risk of death or injury increase even though defendant only drove van to pay for own trip. (340) Defendant pled guilty to transporting illegal aliens within the United States for commercial gain, in violation of 8 U.S.C. §§ 1324(a)(1)(ii) and (B)(i). The district court applied a § 2L1.1(b)(5) enhancement for having recklessly created a substantial risk of death or serious bodily injury to the illegal aliens he transported. Defendant argued that he should not be held responsible for those conditions because he was an illegal alien himself, who only drove the van to pay the fee demanded by the organizers for the trip. The Eighth Circuit rejected this argument and affirmed the enhancement. While defendant may have been driving the van only to pay for his own trip, the fact remained that he knowingly agreed to drive 21 illegal aliens, eight of them children, from Phoenix to Chicago, crowded in the back of a cargo van without seats or seatbelts. U.S. v. Rio-Baena, 247 F.3d 722 (8th Cir. 2001).

8th Circuit holds that prior aggravated felony conviction need not be alleged in indictment or proven to jury. (340) Defendant pled guilty to illegally re-entering the United States after deportation, in violation of 8 U.S.C. § 1326(a). His sentence was enhanced under § 1326(b) and USSG § 2L1.2(b)(1)(A) because he had been deported after being convicted of an aggravated felony. Defendant argued that because the fact of a prior aggravated felony conviction was not alleged in the indictment and was neither proved to a jury nor admitted through his guilty plea, the enhancement sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000). The Eighth Circuit rejected this argument. In Almendarez-Torres v. U.S., 523 U.S. 224 (1998), the Supreme Court upheld the validity of the § 1326(b)(2) aggravated-felony enhancement for § 1326(a) violators. Apprendi did not overrule Almendarez-Torres. U.S. v. Raya-Ramirez, 244 F.3d 976 (8th Cir. 2001).

8th Circuit holds that driving 23 people in van built for 14 created substantial risk of death or serious bodily injury. (340) Defendant was driving a van equipped to accommodate 14 passengers, but which held 23 illegal aliens. A rear tire blew out and the van overturned. Most of the passengers were injured, including a child who was transported by life-flight helicopter. The Eighth Circuit affirmed a § 2L1.1(b)(5) increase for intentionally or recklessly creating a substantial risk of death or serious bodily injury. Defendant conceded that there were not enough seatbelts in the van. Note 6 says that the reckless conduct to which the (b)(5) increase applies includes a wide variety of conduct, such as carrying substantially more passengers than a vehicle’s rated capacity. U.S. v. Ortiz, 242 F.3d 1078 (8th Cir. 2001).

8th Circuit holds that deportable-alien status cannot be grounds for departure from illegal reentry sentence. (340) Defendant was convicted of illegally reentering the country after deportation. He moved for a departure based on his status as a deportable alien, claiming that this status rendered him ineligible for certain Bureau of Prisons benefits, thus subjecting him to harsher prison conditions than other prisoners. The district court ruled that deportable-alien status cannot be a valid basis for departure under § 2L1.2, because a defendant’s alien status is an element of the crime and thus cannot be a factor the Sentencing Commission did not consider in formulating § 2L1.2. The Eighth Circuit agreed. The Commission clearly considered deportable-alien status in formulating § 2L1.2. The panel rejected defendant’s argument that its approval of departures for voluntary consent to deportation indicated that the Commission did not take deportable-alien status into account. Departures on the basis of consent to deportation are distinguishable because defendants can chose whether to consent, and because consent saves the government time and expense. U.S. v. Cardosa-Rodriguez, 241 F.3d 613 (8th Cir. 2001).

8th Circuit affirms departure for psychological injury, unlawful restraint, and extreme conduct in immigration case. (340) Defendant was convicted of harboring an illegal alien after Warner, an illegal alien, was found dead and buried in her backyard. Prior to Warner’s death, defendant and members of her family had essentially held the Warner captive, forcing him both to work as a servant in her household and to turn over his wages from outside employment to defendant. Further, Warner had been deprived of adequate nourishment and medical care, and subjected to physical and psychological humiliation and abuse. The district court found that § 2L1.1 did not adequately account for defendant’s aggravating conduct, and that an additional departure was warranted on account of extreme psychological injury, § 5K2.3; unlawful restraint, § 5K2.4; and extreme conduct, § 5K2.8. The Eighth Circuit affirmed. Note 5 to the 1995 version of § 2L1.1 states that an upward departure might be warranted if “the offense involved dangerous or inhumane treatment, death or bodily injury.” There was ample evidence in the record to support the imposition of a departure on these grounds. Although the 14-level departure was exceptional, it was not unreasonable. U.S. v. Lewis, 235 F.3d 394 (8th Cir. 2000).

8th Circuit upholds refusal to depart for deportable alien. (340) Defendant was convicted of drug trafficking charges and received a sentence of 168 months. He argued that the district court should have departed downward because, as a deportable alien, the sentence has inflicted an exceptional hardship on him. His status will result in his being incarcerated under more severe conditions, perhaps being excluded from community confinement programs or incarceration in minimum security facilities. The Eighth Circuit found it had no jurisdiction to review the argument. First the district court was aware of its authority to depart, but declined to exercise it, finding that defendant’s status as a deportable alien “has not resulted in unusual or exceptional hardships in his conditions of confinement to an extent sufficient to warrant a departure.” Since defendant was convicted of trafficking in a large quantity of drugs, the court found it unlikely that defendant would have been placed in a minimum security facility anyway. Moreover, even if the decision were reviewable, the refusal to depart was not an abuse of discretion. Defendant’s status as a deportable alien was entirely attributable to his own voluntary acts. U.S. v. Bahena, 223 F.3d 797 (8th Cir. 2000).

8th Circuit rejects “not for profit” reduction where defendant expected forgiveness of debt. (340) Defendant and others paid a “coyote” to smuggle them into the United States. Defendant agreed to drive the van that would transport the aliens from Arizona to Florida, and in return, his debt to the coyote would be forgiven. The district court refused to grant defendant a reduction under § 2L1.1(b)(1) for an offense committed “other than for profit.” Prior to May 1997, the commentary stated: “‘For profit’ means for financial gain or commercial advantage, but this definition does not include a defendant who commits the offense solely in return for his own entry or transportation.” The November 1997 commentary in effect when defendant committed his offense states: “‘The offense was committed other than for profit’ means that there was no payment or expectation of payment ….” The Eighth Circuit agreed that under the November 1997 commentary, a defendant who commits the relevant offense “solely in return for his own entry” may nevertheless be found to have committed the offense “for profit.” Moreover, the words “payment” and “expectation of payment,” can refer to something other than money. Here, defendant clearly expected to receive something other than money in exchange for transporting the other aliens. Because defendant was to receive forgiveness of his debt to the coyote, the district court did not clearly err in finding that defendant’s offense was not committed “other than for profit.” U.S. v. Juan-Manuel, 222 F.3d 480 (8th Cir. 2000).

8th Circuit holds that burglary of a vehicle was aggravated felony. (340) The district court applied a 16-level enhancement under § 2L1.2(b)(1)(A) because defendant had previously been deported after a conviction for an aggravated felony. Defendant argued that the district court erred in determining that his convictions in Texas state court for burglary of a vehicle were aggravated felonies. The Eighth Circuit disagreed, citing U.S. v. Delgado-Enriquez, 188 F.3d 592 (5th Cir. 1999) (burglary of a vehicle is a crime of violence and therefore an aggravated felony) and U.S. v. Maul-Valverde, 10 F.3d 544 (8th Cir. 1993) (all burglaries are aggravated felonies). U.S. v. Guzman-Landeros, 207 F.3d 1034 (8th Cir. 2000).

8th Circuit counts suspended sentence for aggravated felony purposes. (340) Guideline § 2L1.2(b)(1)(A) provides for a 16-level enhancement for defendants previously deported after a conviction for an “aggravated felony.” The district court ruled that defendant’s second-degree felony theft conviction was not an aggravated felony because his one to 15 year sentence was suspended. The Eighth Circuit reversed, holding that suspended sentences count for purposes of determining a “term of imprisonment.” The commentary to § 2L1.2 directs a court to 8 U.S.C. § 1101(a)(43), which states that an aggravated felony includes “a theft offense … for which the term of imprisonment [is] at least one year.” Section 1101(a)(48)(B) provides that a “reference to a term of imprisonment … is deemed to include the period of incarceration or confinement ordered … regardless of any suspension …” The court rejected defendant’s claim that it should apply USSG § 4A1.2(b), which states that a “sentence of imprisonment” does not include any portion of a sentence that was suspended. Section 4A1.2(b) defines “sentence of imprisonment” rather than “term of imprisonment,” and the definition is for purposes of computing a defendant’s criminal history category. U.S. v. Tejeda-Perez, 199 F.3d 981 (8th Cir. 1999).

8th Circuit holds that sexual assault of a child was an aggravated felony. (340) Defendant pled guilty to entering the United States after deportation. The district court held that defendant’s prior Nebraska conviction for sexual assault of a child constituted an aggravated felony under § 2L1.2(b)(1)(A), thus warranting a 16-level enhancement. Nebraska defines sexual assault of a child as a person at least 19 years old subjecting another person 14 years old or younger to sexual contact. The Eighth Circuit agreed that the offense was a crime of violence, and therefore it qualified as an aggravated felony. The physical contact between parties of differing physical and emotional maturity carries “a substantial risk that physical force … may be used in the course of committing the offense.” 18 U.S.C. §16(b). U.S. v. Alas-Castro, 184 F.3d 812 (8th Cir. 1999).

8th Circuit says illegal reentry offense continued until defendant found in the U.S. (340) Defendant pled guilty to illegally reentering the country after deportation, in violation of 8 U.S.C. § 1326. The district court applied a 16-level increase under § 2L1.2(b)(1) (B) because one of defendant’s prior offenses, a 1987 conviction for corporal injury on a spouse, was an aggravated felony under the 1997 version of 8 U.S.C. § 1101(a)(43). Defendant argued that the use of the enhancement violated the ex post facto clause because the 1987 conviction was not an aggravated felony in 1991 when he violated § 1326 by illegally reentering the country. The Eighth Circuit found no ex post facto violation because the crime of reentry is an ongoing offense that continues until an individual is discovered by authorities. When an individual is “found in” the United States, the date he or she is found is generally considered to be the date he or she violated § 1326. Defendant was “found in” the U.S. in 1997, after the definition of aggravated felony was expanded to include his 1987 conviction. U.S. v. Estrada-Quijas, 183 F.3d 758 (8th Cir. 1999).

8th Circuit holds guideline definition of aggravated felony is independent of statute. (340) Defendant pled guilty to being found in the U.S. after deportation following a conviction for aggravated rape, in violation of 8 U.S.C. § 1326(b)(2). Section 2L1.2(b)(2) provides for a 16-level enhancement if the deportation followed conviction for an “aggravated felony.” The definition of “aggravated felony” appears both in 8 U.S.C. § 1101 and in the guidelines. In 1988, § 1101’s definition of aggravated felony included only murder and some drug and gun offenses. In 1990, Congress expanded the definition to include crimes of violence, but only for felonies committed after the 1990 amendment. Effective November 1991, the Sentencing Commission adopted this expanded definition for the guidelines, except that the guidelines definition did not contain a date restriction for the felonies. Defendant argued that the 1978 aggravated rape was not an “aggravated felony” under § 2L1.2(b)(2) because it occurred before 1990. The Eighth Circuit, agreeing with the Seventh and Eleventh Circuits and disagreeing with the Ninth Circuit, held that the guidelines’ definition of aggravated felony is independent of the statutory definition. There is no indication the Commission intended the specific offense characteristics in § 2L1.2(b) to be read as directly correlated to the various subsections of § 1326. U.S. v. Cazares-Gonzalez, 152 F.3d 889 (8th Cir. 1998).

8th Circuit departs down for deported alien because prior aggravated felony was not serious. (340) Defendant was convicted of unlawfully reentering the U.S. after deportation. He was subject to a 16-level enhancement under § 2L1.2(b)(2) because the deportation occurred after his conviction for an aggravated felony. However, the district departed downward from a guideline range of 63-78 months to a sentence of 10 months on the ground that the underlying conviction did not warrant such a heightened sentence. On appeal, the Eighth Circuit upheld the departure based on the November 1997 amendment to note 5 to § 2L1.2, which states that a downward departure may be warranted based on the seriousness of the aggravated felony. The commentary to the amendment described the amendment as making clarifying changes to the commentary. Therefore, appellate courts must apply the amendment retroactively. Under the amendment, the seriousness of the aggravated felony is an encouraged factor upon which a departure may be based. U.S. v. Diaz-Diaz, 135 F.3d 572 (8th Cir. 1998).

8th Circuit holds alien’s aiding and abetting drug crime is aggravated felony. (340) Defendant was convicted of drug charges and deported. He later was convicted of illegally reentering the U.S. following deportation for an aggravated felony. He argued that the 16-level aggravated felony enhancement under § 2L1.2(b) did not apply because he was convicted of “aiding and abetting” cocaine possession rather than committing the crime as a principal. The Eighth Circuit held that a conviction of aiding and abetting an offense is the same as conviction of the offense as a principal for aggravated felony purposes. Although convicted on a theory of accomplice liability, defendant was nevertheless convicted and punished for the cocaine offense–the same as if he had been the principal or only party involved in the conduct. U.S. v. Baca-Valenzuela, 118 F.3d 1223 (8th Cir. 1997).

8th Circuit holds drug convictions prior to 1988 can be “aggravated felonies.” (340) In 1987, defendant, an illegal alien, was convicted of drug charges and sent to prison. In 1988, the Anti-Drug Abuse Act was amended to increase to 15 years the maximum penalty for reentering the U.S. after having been deported following an aggravated felony. In 1990, the Act expanded the definition of aggravated felonies to include drug trafficking crimes. In 1992, defendant was deported. In 1995, he was arrested in the U.S., and convicted of illegally reentering the U.S. following deportation. He argued that his 1987 drug offense was not an aggravated felony because it was not so classified when he committed it. The Eighth Circuit held that the term “aggravated felony” included drug crimes committed prior to 1990. The statute expressly states that a money laundering or crime of violence cannot be the basis for an aggravated felony enhancement unless it is committed after November 1990. However, drug offenses are treated as if they were included in the 1988 Act. The language and design of the 1988 Act make clear that Congress intended to include drug convictions prior to 1988. The application of the enhanced penalties did not violate the ex post facto clause. Defendant was not being punished for his 1987 crime, but for the offense of reentry. The application of the aggravated felony enhancement based on pre-1990 drug felonies did not provide a basis for departure. Moreover, the refusal to depart was not reviewable. U.S. v. Baca-Valenzuela, 118 F.3d 1223 (8th Cir. 1997).

8th Circuit holds drug offense with suspended sentence was aggravated felony. (340) Defendant illegally reentered the U.S. after being deported following his California conviction for possession of methamphetamine. Defendant argued that the California conviction was not an aggravated felony, but a misdemeanor, because he received a suspended sentence and probation. The Eighth Circuit held that the California drug offense was an aggravated felony despite the suspended sentence and probation. Section 17(b) of the California Penal Code states that when a court has discretion to punish a crime as a felony or a misdemeanor, it is a misdemeanor if the judgment imposes a punishment other than imprisonment or when the court grants probation and declares the offense to be a misdemeanor. Defendant did not meet the first requirement because an order granting probation is not a judgment. Defendant did not meet the second requirement because the California court never declared his conviction to be a misdemeanor. U.S. v. Haggerty, 85 F.3d 403 (8th Cir. 1996).

8th Circuit holds that § 1326(b) is enhancement rather than separate substantive offense. (340) Defendant illegally reentered the U.S. after being deported following conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). Defendant moved to dismiss the indictment because it failed to allege the prior drug conviction. The Eighth Circuit held that § 1326(b) is a sentence enhancement provision rather than a separate substantive offense, and therefore the indictment need not charge the prior aggravated felony. U.S. v. Haggerty, 85 F.3d 403 (8th Cir. 1996).

8th Circuit says court erroneously believed it could not depart based on waiver and consent to deportation. (340) The Eighth Circuit ruled that the district court erred as a matter of law in concluding that it could not depart downward on the basis of defendant’s waiver and consent to administrative deportation upon the filing of a joint motion by the parties for a two‑level downward departure on defendant’s plea of guilty to illegal re‑entry. On remand, the court may consider whether departure is warranted. U.S. v. Cruz-Ochoa, 85 F.3d 325 (8th Cir. 1996).

8th Circuit reverses for lack of evidence that defendant was deported after conviction. (340) Defendant pled guilty to illegal reentry after deportation. He did not dispute that he was deported from the U.S. before 1987, but the district court applied a § 2L1.2(b)(1) enhancement for being deported after a 1987 California felony drug conviction felony conviction. The Eighth Circuit reversed the enhancement because there was no evidence that defendant was deported following this conviction. The district court relied on a generalized statement of the California court that it released defendant to the INS for deportation processing. However, in April 1988, the INS “released” defendant because of its heavy caseload, stating that defendant wanted to travel to Iowa to see his attorney since he was claiming 13 years residence. Although there was evidence that defendant voluntarily returned to Mexico in 1991 to be interviewed for an immigration visa, this was not proof of deportation. U.S. v. Mendoza‑Alvarez, 79 F.3d 96 (8th Cir. 1996).

8th Circuit rejects enhancement where prior felony involved violation of immigration laws. (340) Defendant, a deported alien, illegally reentered the United States. Section 2L1.2(b)(1) provides for a four-level enhancement for a defendant deported after a felony, other than a felony “involving violation of the immigration laws.” The district court enhanced defendant’s sentence under § 2L1.2(b)(1) based on his previous conviction for possessing a counterfeit “green card.” The Eighth Circuit reversed, holding that possession of a counterfeit green card was a felony “involving violation of the immigration laws.” The court rejected the narrow interpretation of “immigration laws” in U.S. v. Sotelo‑Carrillo, 46 F.3d 28 (7th Cir. 1995). The phrase “involving violation of the immigration laws” is a loose term, capable of a broad interpretation. The word “involving” is ambiguous at best, and the rule of lenity should be applied to yield the shorter sentence. U.S. v. Lazaro‑Guadarrama, 71 F.3d 1419 (8th Cir. 1995).

8th Circuit rejects downward departure for ancient felony in deportation case. (340) Defendant illegally reentered the country after being deported. He received a 16-level enhancement under section 2L1.2(b)(2) because his deportation followed an aggravated felony conviction. The district court departed downward, finding that because defendant’s 1977 burglary conviction was too old to be counted for criminal history purposes, it should not be the basis of a 16-level enhancement. The court also found that the 16-level enhancement significantly overrepresented defendant’s criminal history. The 8th Circuit reversed, noting that the Sentencing Commission took its definition of “aggravated felony” directly from the statute, and thus expressly considered this factor in § 2L1.2. The departure based on the overrepresentation of defendant’s criminal history was a misapplication of the guidelines. Section 4A1.3 authorizes departures from a defendant’s criminal history category, while section 2L1.2 provides an enhancement to a defendant’s base offense level. The court did suggest, however, that in unusual circumstances, a downward departure might be appropriate. U.S. v. Maul-Valverde, 10 F.3d 544 (8th Cir. 1993).

8th Circuit holds that lascivious acts with a child was an aggravated felony. (340) Guideline section 2L1.2(b)(2) provides a 16 level enhancement for the illegal entry into the U.S. by an alien previously deported after conviction of an aggravated felony. The 8th Circuit affirmed that defendant’s prior Iowa conviction for committing lascivious acts with a child qualified as an aggravated felony. Application note 7 defines an aggravated felony as any crime of violence under 18 U.S.C. section 16 for which the term of imprisonment is at least five years. Crime of violence is defined as an offense that has as an element the use, attempted use, or threatened use of physical force, or any other felony that by its nature involves a substantial risk that physical force against the person or property of another may be used. A sentencing court is not required to consider the underlying circumstances in determining whether the crime was a crime of violence. There was no question that lascivious acts with 10-year old children, was by its nature a crime of violence, and thus an aggravated felony. U.S. v. Rodriguez, 979 F.2d 138 (8th Cir. 1992).

8th Circuit upholds three month sentence for defendant who entered into sham marriage to evade immigration laws. (340) Defendant entered into a sham marriage in order to obtain permanent residency in the United States. She contended that her three-month prison sentence under the sentencing guidelines was “mechanistically determined and excessive.” The 8th Circuit upheld the sentence. Defendant did not argue that the guidelines were incorrectly applied or that her sentence was outside the guideline range. The applicable guideline range was two to eight months. The district court did not abuse its discretion by imposing a three month sentence or by deciding not to depart from the appropriate guideline range. U.S. v. Vickerage, 921 F.2d 143 (8th Cir. 1990).

9th Circuit upholds enhancement for harboring minor aliens. (340) Defendant pleaded guilty to harbor¬ing aliens, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii). The guideline for alien harboring, § 2L1.1(b)(4), pro¬vid¬es for a two-level enhancement if the defendant smug¬gled, transported, or harbored an unaccompanied minor. When law enforcement agents raided a house rented by defendant and being used to house illegal aliens, they found two minors, who were 13 and 15 years old. Defen¬dant was also connected to several other houses that housed illegal aliens. At sentencing, defendant argued that it was not foreseeable that an alien he harbored would be a minor, but the district court imposed the enhancement. The Ninth Circuit affirmed, finding that the district court properly applied a reasonable foresee¬ability standard and that it did not clearly err in finding reasonable foreseeability. U.S. v. Gamez Reyes, __ F3d __ (9th Cir. Nov. 21, 2014) No. 13-50086.

9th Circuit upholds enhancement for detaining alien through coercion or payment demand. (340) At a house leased by defendant, an alien told law enforcement officers that she had been smuggled into the U.S. but was being detained by the smugglers because they wanted an additional fee. One of the smugglers threatened the wo¬man if she could not pay the fee. At defendant’s sentenc¬ing for harboring aliens, the court applied a two-level increase for involuntarily detaining through coercion or threat or in connection with a demand for payment. The Ninth Circuit found ample evidence that the smugglers had used violence and coercion to detain the aliens and that the use of coercion was reasonably foreseeable to defendant. U.S. v. Gamez Reyes, __ F.3d __ (9th Cir. Nov. 21, 2014) No. 13-50086.

9th Circuit finds court adequately considered guidelines before imposing sentence. (340) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. At sentencing, the district court said that it believed that the guidelines would provide “poor advice” in light of defendant’s long record of recidivism, and that the guidelines were “not going to guide” the district court in imposing sentence. The court nevertheless calculated the guidelines and imposed a sentence below the guidelines range. The Ninth Circuit held that the district court properly used the guidelines as a starting point and did not fail to give adequate weight to the guidelines. U.S. v. Quintero-Junco, __ F.3d __ (9th Cir. June 12, 2014) No. 13-10087.

9th Circuit says Arizona attempted sexual abuse satisfied modified categorical approach. (340) Defendant, convicted of illegal reentry after deportation in violation of 8 U.S.C. § 1326, had a prior conviction under Arizona Revised Statutes § 13-1404 for attempted sexual abuse. Under § 2L1.2(b)(1)(A)(ii), the guideline for § 1326, a defendant who has a prior “crime of violence” is subject to a 16-level enhancement. The term “crime of violence” is defined in part to mean a “forcible sex offense.” The Ninth Circuit held that the Arizona statute is not categorically a crime of violence, but it is “divisible,” and under the modified categorical approach, defendant’s attempted sexual abuse constituted a “crime of violence.” U.S. v. Quintero-Junco, __ F.3d __ (9th Cir. June 12, 2014) No. 13-10087.

9th Circuit says failure to plead to date of removal limits sentence to two years. (340) Under 8 U.S.C. § 1326, which makes it a crime to reenter the U.S. after deportation, a defendant is subject to a two-year sentence, unless the defendant was deported after conviction for an “aggravated felony.” An information charged that defendant had been removed from the U.S. on three occasions before being “found in” the U.S., in violation of § 1326. Two of the removal dates occurred before defendant was convicted of an aggravated felony, and one occurred after his conviction. Defendant pleaded guilty to violating § 1326, but he did not admit any of the dates of removal. The Ninth Circuit held that because his guilty plea did not establish that he had been removed after a conviction for an aggravated felony, the maximum sentence that he could receive was two years, not 20. U.S. v. Guerrero-Jasso, 752 F.3d 1186 (9th Cir. 2014).

9th Circuit holds battery with injury on police officer is a crime of violence. (340) Defendant, convicted of illegal reentry after deportation in violation of 8 U.S.C. § 1326, had a prior conviction for battery with injury on a police officer, in violation of California Penal Code § 243(c)(2). Under § 2L1.2, a defendant convicted under § 1326 is subject to a 16-level enhancement in offense level if he has a prior conviction for a “crime of violence.” That term is defined in part to mean an offense that has as an element the use, attempted use, or threatened use of physical force against another. The Ninth Circuit held that Penal Code § 243(c)(2) is categorically a crime of violence. U.S. v. Colon-Arreola, 753 F.3d 841 (9th Cir. 2014).

9th Circuit says Arizona aggravated assault is “crime of violence.” (340) Defendant was charged with illegal reentry after deportation, in violation of 8 U.S.C. § 1326. He had a prior conviction for aggravated assault under Arizona Revised Statutes §§ 13-1203(A)(2) and 13-1204(A)(2). Before trial, he sought dismissal of the § 1326 charge on the ground that he had been improperly deported because his Arizona conviction was not a “crime of violence.” Under 18 U.S.C. § 16, a “crime of violence” is defined in part to mean an offense that requires the use, attempted use, or threatened use of force against another. The complaint, plea agreement, and plea colloquy stated that defendant committed aggravated assault by firing a gun in the direction of others. Applying the modified categorical approach, the Ninth Circuit held that defendant’s prior conviction under Arizona law constituted a crime of violence. U.S. v. Cabrera-Perez, 751 F.3d 1000 (9th Cir. 2014).

9th Circuit finds Arizona sexual conduct with a minor is not crime of violence. (340) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. He had a prior conviction under Arizona Revised Statute § 13-1405 for “attempted sexual conduct with a minor under the age of 15.” Under § 2L1.2(b)(1)(A)(ii), a § 1326 defendant who has a prior conviction for a “crime of violence” is subject to a 16-level increase in offense level. The term “crime of violence” is defined in part to mean “statutory rape” or “sexual abuse of a minor.” The Ninth Circuit concluded that defendant’s prior Arizona conviction did not constitute a crime of violence. U.S. v. Gomez, __ F.3d __ (9th Cir. April 24, 2014) No. 11-30262.

9th Circuit rejects use of affirmative defense to determine if prior is aggravated felony. (340) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. Defendant had a prior conviction in California for attempted murder and kidnapping. At sentencing, the district court found that defendant’s prior offense constituted an aggravated felony and enhanced his sentence by 16 levels under § 2L1.2(b)(1)(A)(ii). On appeal, defendant argued that because California does not provide for the affirmative defense of voluntary abandonment to a charge of attempt, the crime of attempt is categorically overbroad. The Ninth Circuit held that prior precedent barred the court from considering affirmative defenses in determining whether an offense is categorically an aggravated felony. U.S. v. Albino-Loe, 747 F.3d 1206 (9th Cir. 2014).

9th Circuit says assault on a federal officer is not categorically a crime of violence. (340) Defendant, convicted of illegal reentry after deportation, had a prior felony conviction for assaulting a federal officer, in violation of 18 U.S.C. § 111(a). At sentencing, the district court found that defendant’s prior offense qualified as a “crime of violence” under § 2L1.2(b)(1)(A)(ii) and increased defendant’s offense level by 16. The Ninth Circuit held that § 111(a) was not categorically a crime of violence because that statute does not require proof that the defendant used or attempted to use physical force to commit it. The government conceded that the modified categorical approach had no application. U.S. v. Dominguez-Maroyoqui, 748 F.3d 918 (9th Cir. 2014).

9th Circuit says Delaware fourth-degree attempted rape is not a “crime of violence.” (340) Defendant pleaded guilty to illegal reentry after deportation, in violation of 8 U.S.C. § 1326. He had a prior conviction in Delaware for attempted rape in the fourth degree, in violation of Delaware Code Ann. tit. 11, §§ 531 532, and 770. The district court found that this offense was a “crime of violence” under 2L1.2(b)(1)(A)(ii), which defines that term in part to mean “statutory rape” and “sexual abuse of a minor.” The Ninth Circuit held that because Delaware’s definition of attempt criminalizes more conduct than the federal generic definition of attempt, attempted rape in the fourth degree is not a “crime of violence” under either the categorical or modified categorical approaches. U.S. v. Gonzalez-Monterroso, 745 F.3d 1237 (9th Cir. 2014).

9th Circuit says lewd and lascivious sexual battery on 12-15 year old is not a forcible sex offense. (340) Under § 2L1.2(b)(1)(A)(ii), a defendant convicted of illegal reentry under 8 U.S.C. § 1326, who has a prior conviction for a “crime of violence,” receives an eight-level enhancement in offense level. A “crime of violence” is defined in part as “forcible sex acts,” including offenses in which consent to the conduct is not legally valid, and statutory rape. Defendant had a prior conviction under Florida Statutes § 800.04(4)(a) for lewd and lascivious battery. The Florida statute makes it a crime to engage in sexual activity with a person between 12 and 15. The Ninth Circuit held that defendant’s conviction does not categorically constitute a “forcible sex offense” or statutory rape and is therefore not a “crime of violence.” U.S. v. Caceres-Olla, 738 F.3d 1051 (9th Cir. 2013).

9th Circuit finds Arizona racketeering statute to be an aggravated felony. (340) Under 8 U.S.C. § 1101(a)(43(J), the term “aggravated felony” includes offenses described in 18 U.S.C. § 1962 relating to racketeer influenced corrupt organizations. Petitioner had a conviction under Arizona law for illegally conducting an enterprise, in violation of Ariz. Rev. Stat. § 13-2301. The Ninth Circuit applied the modified categorical approach because the Arizona statute could be violated by committing predicate offenses that are not listed in § 1962. Applying the modified categorical approach, the court held that petitioner’s violation of § 13-2301 constituted an aggravated felony. Murillo-Prado v. Holder, 735 F.3d 1152 (9th Cir. 2013).

9th Circuit says attempted sexual conduct with a minor in Arizona is not a crime of violence. (340) Under § 2L1.2(b)(1)(A)(ii), a defendant convicted of illegal reentry after deportation receives a 16-level enhancement if he was deported after a conviction for a “crime of violence.” The term “crime of violence” includes “sexual abuse of a minor.” Defendant had a prior conviction for “attempted sexual conduct with a minor under the age of 15” under Arizona Revised Statute § 13-1405. The Ninth Circuit held that defendant’s violation of § 13-1405 did not categorically qualify as “sexual abuse of a minor” and therefore was not a “crime of violence.” Because the Arizona statute lacked the element of a difference in age between the defendant and the victim, the court did not analyze it under the modified categorical approach. U.S. v. Gomez, 732 F.3d 971 (9th Cir. 2013).

9th Circuit says aggravated sexual abuse in Illinois is not a crime of violence. (340) Defendant, convicted of illegal reentry after deportation, had a prior conviction for aggravated criminal sexual abuse, in violation of 720 Illinois Compiled Statutes § 5/12-16(d). That provision defines aggravated criminal sexual abuse as “an act of sexual penetration or sexual conduct with a victim who was at least 13 years of age but under 17 years of age and the accused was at least 5 years older than the victim.” At sentencing, the district court found that this offense was a “forcible sex offense” and therefore a “crime of violence” under 2L1.2(b)(1)(A)(ii), requiring a 16-level enhancement. The Ninth Circuit held that aggravated criminal sexual abuse under Illinois law did not qualify as a “crime of violence” under either the categorical or modified categorical approach because it included as victims, persons who were not minors under federal law. U.S. v. Acosta-Chavez, 727 F.3d 903 (9th Cir. 2013).

9th Circuit says taking a vehicle without owner’s consent in California was an aggravated felony. (340) Petitioner had a conviction for taking a vehicle without the owner’s consent, in violation of California Vehicle Code § 10851(a). In an unpublished decision, the Ninth Circuit held that this offense did not categorically constitute an aggravated felony because it criminalized aiding and abetting and was therefore not a “generic” theft offense. The Supreme Court vacated and remanded. On remand, the Ninth Circuit held that § 10851(a) is not “categorically” a “felony theft offense.” Nevertheless, applying the applying the modified categorical approach, the court found that petitioner’s offense was an aggravated felony. Duenas-Alvarez v. Holder, 733 F.3d 812 (9th Cir. 2013).

9th Circuit says brandishing a firearm near a motor vehicle occupant is a crime of violence. (340) Petitioner was convicted under California Penal Code § 417.3 of brandishing a firearm in the presence of the occupant of a motor vehicle in such a way as to cause a reasonable person apprehension or fear of bodily injury. Under 18 U.S.C. § 16(a), a crime constitutes a “crime of violence” and therefore an aggravated felony if, among other things, it has an element the “threatened use of physical force against the person of another.” The Ninth Circuit held that § 417.3 categorically describes a crime of violence. Bolanos v. Holder, 734 F.3d 875 (9th Cir. 2013).

9th Circuit reverses error in calculating guidelines even though court said it would impose same sentence regardless of any error. (340) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. §1326. At sentencing, the district court found that defendant’s prior offense constituted a “crime of violence” and, based on that finding, increased defendant’s offense level by 16. The court calculated defendant’s sentencing range as 46-57 months, but found that this range overstated the nature of defendant’s offense and imposed a sentence of 30 months. The court added that it would have imposed the same sentence even if it had not found that defendant’s prior conviction was a crime of violence, in which case the sentencing range would have been 8-14 months. The Ninth Circuit reversed, holding that defendant’s prior conviction was not a “crime of violence” and that the error was not harmless. When a district court says it would impose the same sentence regardless of any error, it must explain the reasons why it would impose the same sentence. U.S. v. Acosta-Chavez, 727 F.3d 903 (9th Cir. 2013).

9th Circuit holds that Arizona resisting arrest statute is “indivisible.” (340) Under Descamps v. U.S., 133 S.Ct. 2276 (2013), a court that determines that a statute does not categorically define a “crime of violence” (or other categories of offenses) may examine judicially noticeable documents under the “modified categorical approach” only if the statute is “divisible.” A statute is divisible if it lists multiple, alternative elements. If a statute is divisible a court may use judicially noticeable documents to determine if the defendant’s conduct falls within that part of the statute that defines a crime of violence. The Ninth Circuit held that resisting arrest under Arizona Revised Statute §13-2508(A)(1) is not a divisible statute and therefore that the modified categorical approach does not apply. U.S. v. Flores-Cordero, 723 F.3d 1085 (9th Cir. 2013).

9th Circuit says resisting arrest under Arizona law is not a crime of violence. (340) Defendant pleaded guilty to illegal reentry after deportation, in violation of 8 U.S.C. § 1326. She had a prior conviction under Arizona Revised Statute § 13-2508 for resisting arrest. Under § 2L1.2(b)(1)(A), a person convicted of violating § 1326 who has a prior conviction for a “crime of violence” is subject to a 16-level increase in sentencing level. At sentencing, the district court relied on prior Ninth Circuit decisions to find that resisting arrest under Ariz. Rev. Stat. § 13-2508 was categorically a crime of violence. Relying on recent Arizona state decisions, however, the Ninth Circuit held that resisting arrest does not always involve “physical force” as the Supreme Court has defined that term and is not categorically a crime of violence. U.S. v. Flores-Cordero, 723 F.3d 1085 (9th Cir. 2013).

9th Circuit upholds 57-month sentence for illegal reentry as reasonable. (340) Defendant was born in 1979 and came to the U.S. in 1992. In 2003, he committed the aggravated felony of sexual penetration by a foreign object. After his conviction, he was deported from the U.S. When he tried to return, he was charged with and convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. The district court imposed a within-Guidelines 57-month sentence. The Ninth Circuit held that the sentence was not procedurally or substantively unreasonable. U.S. v. Sandoval-Orellana, 714 F.3d 1174 (9th Cir. 2013).

9th Circuit finds California sexual penetration with a foreign object was aggravated felony. (340) Defendant, convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326, argued that he was wrongfully deported because he was never convicted of an “aggravated felony” and therefore was eligible for various forms of discretionary relief from deportation. Defendant was deported based on his prior conviction under California Penal Code § 289(a)(1) for “sexual penetration by a foreign object.” The Ninth Circuit held that California Penal Code § 289(a)(1) defines a “crime of violence” and therefore an aggravated felony because its commission carries a substantial risk of violence. U.S. v. Sandoval-Orellana, 714 F.3d 1174 (9th Cir. 2013).

9th Circuit says alien’s being “found in” state custody requires increase for being under sentence. (340) When defendant was “found in” the U.S. by immigration authorities, he was serving a state sentence in a state correctional facility. He pleaded guilty to being found in the U.S. after having been deported, in violation of 8 U.S.C. § 1326. At sentencing, the district court enhanced his sentence under § 4A1.1(d) because defendant committed the § 1326 violation “while under any criminal justice sentence.” On appeal, the Ninth Circuit held that the enhancement for committing an offense “while under any criminal justice sentence” applies to a defendant had been confined by state authorities and was not free to depart the U.S. on the date that he was “found in” the U.S., in violation of § 1326. The court rejected defendant’s contention that he could not be “found in” the U.S. by federal authorities after he was discovered by state authorities. U.S. v. Reyes-Ceja, 712 F.3d 1284 (9th Cir. 2013).

9th Circuit applies modified categorical approach to find third-degree rape a forcible sex offense. (340) Defendant, convicted of illegal entry after deportation, had a prior conviction for third-degree rape, in violation of Washington Rev. Code § 9A.44.060(a)(a). The illegal reentry guideline, § 2L1.2, requires a 16-level enhancement if the defendant had a prior conviction for a “crime of violence.” The term “crime of violence” is defined to include a “forcible sex offense.” The Ninth Circuit rejected an interpretation of the pre-2008 guidelines that would have required some physical force beyond that required for sexual penetration. Applying the modified categorical approach, the court held that defendant’s signed guilty plea to the Washington offense showed that the victim did not consent to the offense and therefore that defendant’s prior offense constituted a “crime of violence.” U.S. v. Gallegos-Galindo, 704 F.3d 1269 (9th Cir. 2013).

9th Circuit uses modified categorical approach to find prior conviction was aggravated felony. (340) Defendant moved under 8 U.S.C. § 1326(d) to dismiss an indictment charging him with illegal reentry after deportation in violation of § 1326, on the ground that his prior deportation was invalid. He argued that the offense that led to his deportation, possession of methamphetamine for sale in violation of Cal. Health & Safety Code § 11378, was not an “aggravated felony” that required his deportation. The Ninth Circuit held that although § 11378 did not categorically qualify as an “aggravated felony,” documents related to defendant’s conviction showed that it involved methamphetamine and therefore was an “aggravated felony.” U.S. v. Valdavinos-Torres, 704 F.3d 679 (9th Cir. 2012).

9th Circuit, en banc, holds eligibility for safety valve cannot be obtained “nunc pro tunc.” (340) After being convicted of drug offenses carrying mandatory minimum sentences, defendants learned that they would not be eligible for a reduced sentence under the “safety valve” in 18 U.S.C. § 3553(f) because they were on probation for a prior state conviction. So each defendant returned to state court and convinced the court to enter an order terminating probation “nunc pro tunc” as of the day before they committed the federal crime. Based on the “nunc pro tunc” termination of probation, each defendant argued that he was not on probation when he committed the federal crime and therefore was eligible for the safety valve. Sitting en banc, the Ninth Circuit, in a per curiam opinion, held that a defendant’s guidelines range must be calculated at the time he commits the crime and cannot be altered by an order retroactively terminating probation. Judge Wardlaw, joined by four judges, dissented. U.S. v. Yepez, 704 F.3d 1087 (9th Cir. 2012).

9th Circuit holds prior sentence for probation violation after re-entry cannot be used to enhance sentence. (340) The guideline for illegal reentry after deportation, § 2L1.2(b)(1), provides for a 16-level increase if the defendant was deported after a conviction for a felony drug-trafficking offense for which the sentence imposed exceeded 13 months. Defendant, convicted of violating § 1326, had a prior conviction for possession for sale of a controlled substance for which he received a 180-day sentence and 36 months’ probation. After serving his 180-day sentence, defendant was deported, and he then returned to the U.S., where he violated the terms of his probation, and was sentenced in state court to an additional 360 days in prison for the probation violation. The Ninth Circuit held that under amendments to the commentary to § 2L1.2 promulgated on November 1, 2012, calculation of the sentence imposed cannot include a sentence imposed on violation of probation if the violation occurred after the defendant convicted returned to the U.S. U.S. v. Catalan, 701 F.3d 331 (9th Cir. 2012).

9th Circuit upholds below-guidelines 35-month sentence for illegal reentry. (340) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. The district court calculated his sentencing range as 41-51 months. At sentencing, the court varied downward and imposed a sentence of 35 months. The Ninth Circuit held that the 35-month sentence was not unreasonably high. U.S. v. Oseguera-Madrigal, 700 F.3d 1196 (9th Cir. 2012).

9th Circuit holds that rape of a child in the third degree is a “crime of violence.” (340) Defendant pleaded guilty to illegal reentry after removal, in violation of 8 U.S.C. § 1326. He had a prior conviction under Washington Revised Code 9A.44.079 for “rape of a child in the third degree.” That crime requires proof that the victim is between 14 and 16 years old and the defendant is at least four years older than the victim. A defendant convicted of violating § 1326 is subject to a 16-level enhancement in offense level if he has a prior conviction for a “crime of violence.” The Ninth Circuit has interpreted that term to include the “statutory rape” of a person under 16 years of age. The Ninth Circuit held that a violation of Washington Revised Code 9A.44.079 categorically constitutes statutory rape and therefore constitutes a “crime of violence.” U.S. v. Zamorano-Ponce, 699 F.3d 1117 (9th Cir. 2012).

9th Circuit says alien seeking cancellation of removal has burden to show that prior conviction was not for an aggravated felony. (340) Judge Graber, writing for the en banc Ninth Circuit, held that under the REAL ID Act, 8 U.S.C. § 1229a(c)(4); 8 C.F.R. § 1240.8(d) the noncitizen bears the burden of demonstrating eligibility for cancellation of removal. Accordingly, the petitioner must show that he or she “has not been convicted of any aggravated felony.” 8 U.S.C. § 1229b(a)(3). In this case, it was unclear whether the petitioner’s prior California convicion for Sale/Transportation/Offer to Sell” cocaine base in violation of Cal. H. & S. Code § 11352(a) was an aggravated felony. The majority overruled Sandoval–Lua v. Gonzales, 499 F.3d 1121, 1130-31 (9th Cir. 2007), and Rosas–Castaneda v. Holder, 655 F.3d 875, 883-884 (9th Cir. 2011) and held that petitioner failed to meet his burden to show that the prior conviction was not for an aggravated felony, so he was not eligible for cancellation of removal. Judge Ikuta dissented, joined by judges Kleinfeld, Clifton and Bea. Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc).

9th Circuit applies “categorical approach” to prior convictions in immigration hearings. (340) In 2005, petitioner pleaded guilty to “Sale/Transportation/Offer to Sell” cocaine base in violation of Cal. H.&S. Code § 11352(a). Using the “modified categorical approach,” the immigration judge reviewed the charging document and guilty plea, and found that the conviction was for an aggravated felony. On appeal, the en banc Ninth Circuit, Graber, J., held that the categorical approach applies to immigration proceedings, so the immigration judge properly limited his inquiry to the documents allowed under the “modified categorial approach” of Shepard v. U.S., 544 U.S. 13, 26 (2005). Judge Ikuta dissented, joined by judges Kleinfeld, Clifton and Bea, arguing that under Nijhawan v. Holder, 557 U.S. 29, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) the categorical approach did not apply to immigration hearings. Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc).

9th Circuit holds prior guilty plea to conjunctive charge does not necessarily admit every possible version of the crime. (340) In 2005, petitioner pleaded guilty to “Sale/Transportation/Offer to Sell” cocaine base in violation of Cal. H. & S. Code § 11352(a). That statute criminalizes the sale of cocaine, which is an aggravated felony under 8 U.S.C. § 1101(a)(43) (B). However, it also covers mere offering to sell, a controlled substance, which is not an aggravated felony. Levya–Licea v. INS, 187 F.3d 1147, 1150 (9th Cir. 1999). Using the “modified categorical approach,” the immigration judge reviewed the charging document and guilty plea, and found that the conviction was for an aggravated felony. The en banc Ninth Circuit, Graber, J., held that, under the modified categorical approach, a guilty plea to a conjunctive count does not necessarily admit every possible version of the crime. This affirmed the opinion in Malta–Espinoza v. Gonzales, 478 F.3d 1080, 1082 n.3 (9th Cir. 2007) and overruled the opinions in U.S. v. Snellenberger, 548 F.3d 699, 701 (9th Cir. 2008) (en banc); U.S. v. Aguila–Montes de Oca, 655 F.3d 915, 920 (9th Cir. 2011) (en banc); U.S. v. Williams, 47 F.3d 993, 995 (9th Cir. 1995); and U.S. v. Mathews, 833 F.2d 161, 163 (9th Cir. 1987). Thus, a defendant who pleads guilty to “A and B” should not be held to have necessarily admitted either allegation, unless other documents, such as the defendant’s statements at the plea colloquy, establish a narrower basis for the conviction. The court noted that this was consistent with opinions in the Third and Fourth Circuits, but contrary to the Eighth and Tenth Circuits. Young v. Holder, 697 F.3d 976 (9th Cir. 2012) (en banc).

9th Circuit upholds 24-month sentence for illegal reentry. (340) Defendant pleaded guilty to illegal reentry after departure and was given a sentence of 24 months, at the low end of the guidelines range of 24-30 months. Defendant had four prior deportations and five prior criminal convictions, but he also presented evidence of cultural assimilation and diminished mental capacity. The Ninth Circuit held that the 24-month sentence was substantively reasonable. U.S. v. Vasquez-Cruz, 692 F.3d 1001 (9th Cir. 2012).

9th Circuit affirms where reasons for guidelines sentence were adequately explained. (340) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. The presentence report and district court found the guidelines range to be 24-30 months. At sentencing, the district court imposed a 24-month sentence, explaining that defendant’s offense was within the “heartland” of the guidelines, that it did not see any basis for a variance or departure, and that none of the factors listed in 18 U.S.C. § 3553(a) supported a variance. The district court also balanced defendant’s “fairly extensive” criminal history with evidence that he suffered from a mental disability. The Ninth Circuit held that the district court adequately explained its reasons for the sentence. U.S. v. Vasquez-Cruz, 692 F.3d 1001 (9th Cir. 2012).

9th Circuit declines to review failure to depart from guidelines range. (340) Defendant pleaded guilty to illegal reentry after deportation, in violation of 8 U.S.C. § 1326. At sentencing, he sought a downward departure under Application Note 8 to §2L1.2, which allows for a downward departure for some defendants convicted of illegal reentry on the basis of “cultural assimilation.” The district court denied the departure, and the Ninth Circuit reaffirmed that it did not review district court decisions not to depart from the guidelines range. The court rejected defendant’s argument that the 2010 amendments to § 1B1.1 abrogated prior decisions barring review of decisions not to depart. U.S. v. Vasquez-Cruz, 692 F.3d 1001 (9th Cir. 2012).

9th Circuit reverses cross-reference for lack of malice in car accident deaths. (340) While driving an SUV loaded with illegal aliens, defendant tried to swerve around a spike strip. The sudden shift in weight caused the SUV to roll, killing 10 of the illegal aliens. After being convicted of transporting illegal aliens, defendant was sentenced to 10 life sentences. On appeal, the Ninth Circuit vacated the sentence, ruling that the district court erred in calculating defendant’s offense level by cross-referencing to the second-degree murder guideline without finding that defendant acted with “malice aforethought” or using a clear-and-convincing-evidence standard. On remand, the district court again imposed 10 life sentences. The Ninth Circuit vacated the sentence, finding that the district court clearly erred in finding by clear and convincing evidence that defendant acted with malice aforethought. U.S. v. Pineda-Doval, 692 F.3d 942 (9th Cir. 2012).

9th Circuit reaffirms that California robbery is a crime of violence. (340) In U.S. v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008), the court held that robbery under California Penal Code § 211 is categorically a “crime of violence” under guidelines § 2L1.2 and therefore requires a 16-level enhancement of defendant’s offense level for illegal reentry after deportation, in violation of 8 U.S.C. § 1326. Defendant argued that the California Supreme Court’s decision in People v. Anderson, 252 P.3d 968 (Cal. 2011), broadened the conduct falling within § 211 so that it is no longer a “crime of violence.” The Ninth Circuit rejected this argument, finding that Anderson did “nothing more than confirm California’s definition of robbery.” U.S. v. Flores-Mejia, 687 F.3d 1213 (9th Cir. 2012).

9th Circuit finds plain error in relying on PSR to find crime of violence. (340) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. The presentence report stated that defendant had a prior conviction for second-degree attempted assault in New York and explained that according to the charging document, defendant stabbed another man with a knife five times. Based on this information, the PSR concluded that the New York offense was a “crime of violence” within the meaning of § 2L1.2(b)(1)(A)(ii) and that defendant’s offense level should be increased by 16. At sentencing, the district court found that defendant had a prior conviction for a crime of violence and sentenced defendant within the Guidelines range yielded by the 16-level increase. The Ninth Circuit held that the district court had committed plain error by relying on the PSR’s factual description of defendant’s prior offense or its characterization of defendant’s prior offense as a crime of violence. U.S. v. Castillo-Marin, 684 F.3d 914 (9th Cir. 2012).

9th Circuit holds resisting an officer in California is not a crime of violence. (340) Defendant had a conviction for resisting an executive officer, in violation of California Penal Code § 69. That offense makes it a felony to attempt to deter a police officer through threats or violence or resist a police officer by force or violence. The Ninth Circuit held that a violation of § 69 is not a “crime of violence” because it can be violated through a de minimus use of force. Flores-Lopez v. Holder, 685 F.3d 857 (9th Cir. 2012).

9th Circuit says New York assault in the second degree is not categorically a crime of violence. (340) Defendant, convicted of illegal reentry after deportation in violation of 8 U.S.C. § 1326, had a prior conviction for assault under New York Penal Code § 120.10. Under the guideline for illegal reentry, a defendant who has a prior conviction for a “crime of violence” is subject to a 16-level increase in offense level. A “crime of violence” is defined in part to mean “aggravated assault” or an offense that has as an element “the use, attempted use, or threatened use of force against another.” The Ninth Circuit held that New York Penal Code § 120.10 did not categorically qualify as a “crime of violence” because it did not require an intent to injure another and did not meet the generic definition of “aggravated assault.” U.S. v. Castillo-Marin, 684 F.3d 914 (9th Cir. 2012).

9th Circuit holds that kidnapping in Arizona is a crime of violence. (340) Under the guideline for illegal reentry after deportation, § 2L1.2(b)(2) (1)(A), the sentencing court must impose a 16-level increase in offense level on a defendant who has a prior conviction for a “crime of violence.” That term is defined to include kidnapping. Defendant, convicted of illegal reentry, had a prior conviction under Arizona Revised Statutes § 13-304, which makes it a crime to kidnap by knowingly restraining another person. The Ninth Circuit held that kidnapping in violation of Ariz. Rev. Stat. § 13-304 categorically qualifies as a “crime of violence.” U.S. v. Marquez-Lobos, 697 F.3d 759 (9th Cir. 2012).

9th Circuit reaffirms that California first-degree burglary is a “crime of violence.” (340) Defendant was deported after pleading guilty to first-degree burglary, in violation of California Penal Code § 459. When he re-entered the U.S., he was charged with illegal reentry by a convicted felon, in violation of 8 U.S.C. § 1326(b)(2). The Ninth Circuit reaffirmed prior decisions holding that first-degree burglary under California Penal Code § 459 is a “crime of violence” and therefore an aggravated felony. U.S. v. Ramos-Medina, 682 F.3d 852 (9th Cir. 2012), opinion amended and superseded on denial of rehearing en banc by U.S. v. Ramos-Medina, 706 F.3d 932 (9th Cir. 2013).

9th Circuit holds that Arizona attempted aggravated assault is a crime of violence. (340) Under § 2L1.2(b)(1)(A)(ii), the offense level for a violation of 8 U.S.C. § 1326 is increased by 16 levels if the defendant was deported after committing a “crime of violence.” The commentary to the guideline lists attempted aggravated assault as a crime of violence. Defendant was convicted of illegal entry after deportation, in violation of § 1326, and he had a prior conviction for attempted aggravated assault under Arizona law. The Ninth Circuit held that even though aggravated assault under Arizona law does categorically qualify as a crime of violence, defendant’s conviction for attempted aggravated assault constituted a crime of violence under the modified categorical approach. U.S. v. Gomez-Hernandez, 680 F.3d 1171 (9th Cir. 2012).

9th Circuit says California possession of controlled substance is not categorically a drug trafficking offense. (340) A defendant convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326, is subject to a 16-level increase in offense level if he has a prior felony conviction for a “drug trafficking offense.” That term is defined to include the sale or possession of a controlled substance. Defendant, convicted under § 1326, had a prior conviction under California Health & Safety Code § 11351 for possession of heroin for sale. The Ninth Circuit held that § 11351 is not categorically a “drug trafficking offense” because it criminalizes possession of substances that are not “controlled substances” under federal law. Applying the modified categorical approach, however, the court found that defendant’s offense constituted a “drug trafficking offense.” U.S. v. Leal-Vega, 680 F.3d 1160 (9th Cir. 2012).

9th Circuit says invalid deportation order may not support 16-level enhancement. (340) Defendant was convicted of two counts of illegal entry into the U.S., in violation of 8 U.S.C. § 1325. Although defendant had previously been deported under a “stipulated removal order,” the deportation order was unlawful because the order did not give defendant a sufficient opportunity to seek judicial review. Under § 2L1.2(b)(1)(A)(ii), the sentencing court must enhance the offense level of a defendant convicted of a violation of § 1325 by 16 levels if the defendant was deported after being convicted of a crime of violence. The district court rejected defendant’s argument that it could not impose this enhancement because defendant’s prior deportation order was invalid. The Ninth Circuit held that a court may not impose the enhancement required by § 2L1.2(b) (1)(A)(ii) on a defendant who was deported pursuant to an invalid deportation order after committing a crime of violence. U.S. v. Rodriguez-Ocampo, 664 F.3d 1275 (9th Cir. 2011).

9th Circuit says that recidivist sentence means petty offense is an aggravated felony. (340) Under the guidelines for illegal entry after deportation, in violation of 8 U.S.C. § 1326, a defendant’s prior conviction for an aggravated felony can result in an eight-level increase in offense level. “Aggravated felony” is defined to include a “theft offense.” Defendant had prior convictions for petty theft under California Penal Code §§ 484(a) and 666. Those statutes define misdemeanors punishable by not more than six months in jail, but the maximum penalty rises to between 16 months and two years if a recidivist sentencing provision applies. Defendant qualified as a recidivist and therefore his maximum sentence for petty theft was more than a year. The Ninth Circuit held that his prior convictions qualified as felony theft offenses that supported an increase in his guidelines range. U.S. v. Rivera, 658 F.3d 1073 (9th Cir. 2011).

9th Circuit says Utah sexual abuse of a minor is not categorically a crime of violence. (340) The guideline for illegal entry, § 2L1.2(b)(1) (A)(ii), requires a 16-level increase if the defendant was deported after having been convicted a “crime of violence.” That term is defined in part to include “sexual abuse of a minor.” Defendant had a prior conviction under Utah Code § 76-5-404.1 for attempted sexual abuse of a child. The statute is violated when, under circumstances not amounting to rape, the defendant touches the child in specific places or “otherwise takes indecent liberties with a child.” The Ninth Circuit held that this offense did not categorically constitute a “crime of violence,” but found that defendant’s offense was a crime of violence under the modified categorical approach. U.S. v. Tafoya-Montelongo, 659 F.3d 738 (9th Cir. 2011).

9th Circuit limits review to “plain error” where defendant made different argument below. (340) Prior to his sentencing for illegal reentry after deportation, defendant objected to the presentence report, arguing that he should not receive a 16-level enhancement for being deported after committing an “aggravated felony” because the draft PSR did not state that he had previously committed an “aggravated felony.” On appeal, defendant argued that his prior conviction did not constitute an aggravated felony. The Ninth Circuit held that because defendant had not argued in the district court that his prior conviction was an “aggravated felony,” that argument would be reviewed only for plain error. U.S. v. Tafoya-Montelongo, 659 F.3d 738 (9th Cir. 2011).

9th Circuit affirms 46-month sentence at low end of guidelines range. (340) Defendant was convicted of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. At sentencing, the district court found that defendant’s prior conviction for forcible rape constituted a crime of violence and that defendant had committed his offense within two years of being released from prison. Based on these determinations, the court found that defendant’s guidelines range was 46-57 months. The court imposed a sentence of 46 months. The Ninth Circuit held that this sentence was not substantively unreasonable. U.S. v. Ruiz-Apolonio, 657 F.3d 907 (9th Cir. 2011).

9th Circuit rules California forcible rape is categorically a crime of violence. (340) A defendant convicted of illegal entry is subject to a 16-level increase under § 2L1.2(b)(1)(A)(ii) for a prior felony “crime of violence.” That term is defined in part to mean “forcible sex offenses.” Defendant had a prior conviction under California Penal Code § 261(a)(2) for forcible rape, which is defined as sexual intercourse accomplished against a person’s will by force, violence, duress, menace, or fear of injury. The Ninth Circuit held that a violation of § 261(a)(2) is categorically a “crime of violence” within the meaning of the guidelines. U.S. v. Ruiz-Apolonio, 657 F.3d 907 (9th Cir. 2011).

9th Circuit affirms refusal to impose lower sentence in illegal entry case. (340) At his sentencing for illegal reentry after deportation, in violation of 8 U.S.C. § 1326, defendant argued that the 16-level increase in offense level for defendants who were deported after committing a “crime of violence” arbitrarily and disproportionately increases the length of sentences for § 1326 defendants. The district court stated that it had considered defendant’s argument as to the “disproportionate impact” of the 16-level enhancement. The Ninth Circuit held that the district court had adequately explained its reasons for rejecting defendant’s argument. U.S. v. Ayala-Nicanor, 659 F.3d 744 (9th Cir. 2011).

9th Circuit reaffirms that California infliction of corporal injury on spouse is a crime of violence. (340) In U.S. v. Laurico-Yeno, 590 F.3d 818 (9th Cir. 2010), the court found that willful infliction of corporal injury on a spouse, in violation of California Penal Code § 273.5, is categorically a “crime of violence” under § 2L1.2(b)(1)(A)(ii) and therefore requires a 16-level increase for a defendant convicted of illegal reentry after deportation. The Laurico-Yeno court found that § 273.5 categorically qualified as a “crime of violence” because it required proof of the “use, attempted use, or the threatened use of physical force.” Defendant argued that the Ninth Circuit should reconsider that holding under Johnson v. U.S., 130 S.Ct. 1265 (2010), which interpreted the phrase “physical force” in the definition of “violent felony” in the Armed Career Criminal Act, 18 U.S.C. § 924(e), to require violent force. The Ninth Circuit distinguished Johnson and reaffirmed its decision in Laurico-Yeno that § 273.5 categorically defines a “crime of violence.” U.S. v. Ayala-Nicanor, 659 F.3d 744 (9th Cir. 2011).

9th Circuit, en banc, finds California burglary is not a crime of violence. (340) Defendant, convicted of illegal reentry after deportation, had a prior conviction under California Penal Code § 459. That section punishes “[e]very person who enters [various structures] . . . with intent to commit grand or petit larceny or any felony.” At defendant’s sentencing, the district court found that defendant’s prior conviction under § 459 constituted a “crime of violence” and an “aggravated felony” under the applicable Guideline, § 2L1.2. Sitting en banc, the Ninth Circuit held that a conviction under California Penal Code § 459 is categorically broader than generic burglary and therefore a conviction under that statute does not categorically constitute a “crime of violence.” Because the documents produced by the government did not show that defendant committed a generic burglary by unlawfully entering the burglarized premises, defendant’s offense did not qualify as a “crime of violence” under the modified categorical approach. U.S. v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) abrogated by Young v. Holder, 697 F.3d 976 (9th Cir. 2012) and Descamps v. U.S., 133 S.Ct. 2276 (2013).

9th Circuit, e

Query	Gets the documents with
stock market	‘stock’ or ‘market’ or both
“stock market”	the phrase ‘stock market’
+stock +market	‘stock’ and ‘market’
+stock -market	‘stock’ but not ‘market’
+president -“United States”	‘president’ but not ‘United States’
(stock OR market) AND NOT president	‘stock’ or ‘market’, and without ‘president’